State v. Alan S. Johnson , 2023 WI 39 ( 2023 )

2023 WI 39SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP664-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
T. A. J.,
Appellant,
v.
Alan S. Johnson,
Defendant-Respondent-Petitioner.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 394 Wis. 2d 807, 951 N.W.2d 616PDC No: 2020 WI App 73 - Published
OPINION FILED: May 16, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 6, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waupaca
JUDGE: Raymond S. Huber
JUSTICES:
DALLET, J., delivered the majority opinion of the Court, in
which ROGGENSACK, HAGEDORN, and KAROFSKY, JJ., joined, and
REBECCA GRASSL BRADLEY, J., joined with respect to ¶¶2-22 and
25-29. REBECCA GRASSL BRADLEY, J., filed a concurring opinion.
KAROFSKY, J., filed a concurring opinion. ANN WALSH BRADLEY,
J., filed a dissenting opinion in which ZIEGLER, C.J., joined.
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-respondent-petitioner, there were briefs
filed by Nathan J. Wojan and Petit & Dommershausen, S.C.,
Menasha. There was an oral argument by Nathan J. Wojan.
For the appellant, there were briefs filed by Andrea K.
Rufo and Legal Action of Wisconsin, Inc., Racine. There was an
oral argument by Andrea K. Rufo.
For the plaintiff-respondent, there were briefs filed by
Sarah L. Burgundy and Lisa E.F. Kumfer, assistant attorneys
general, with whom on the briefs was Joshua L. Kaul, attorney
general. There was an oral argument by Sarah L. Burgundy,
assistant attorney general.
Amicus curiae briefs were filed by Katie R. York, appellate
division director, with whom on the briefs was Kelli S.
Thompson, state public defender, for the Wisconsin State Public
Defender. There was an oral argument by Katie R. York, appellate
division director.
An amicus curiae brief was filed by Erika Jacobs Petty and
Lotus Legal Clinic, Brookfield, for Lotus Legal Clinic,
Wisconsin Coalition Against Sexual Assault, and the National
Crime Victim Law Institute at Lewis & Clark Law School.
Amicus curiae briefs were filed by Ellen Henak, Robert R.
Henak, and Henak Law Office, S.C., Milwaukee, for the Wisconsin
Association of Criminal Defense Lawyers.
2
2023 WI 39NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP664-CR
(L.C. No. 2017CF0056)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
T. A. J.,
FILED
Appellant, May 16, 2023
v. Sheila T. Reiff
Clerk of Supreme Court
Alan S. Johnson,
Defendant-Respondent-Petitioner.
DALLET, J., delivered the majority opinion of the Court, in
which ROGGENSACK, HAGEDORN, and KAROFSKY, JJ., joined, and
REBECCA GRASSL BRADLEY, J., joined with respect to ¶¶2-22 and
25-29. REBECCA GRASSL BRADLEY, J., filed a concurring opinion.
KAROFSKY, J., filed a concurring opinion. ANN WALSH BRADLEY,
J., filed a dissenting opinion in which ZIEGLER, C.J., joined.
REVIEW of a decision of the Court of Appeals. Reversed and
remanded.
¶1 REBECCA FRANK DALLET, J. Patients have a statutory
privilege to prevent disclosure of confidential communications
with their health care provider that are made for the purposes
of diagnosis or treatment. See Wis. Stat. § 905.04(2) (2019-
No. 2019AP664-CR
20).1 In State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct.
App. 1993), however, the court of appeals created a process by
which a criminal defendant could obtain a limited review by the
court (in camera review) of a victim's privately held, otherwise
privileged health records.2 The State and a victim in a pending
criminal case, T.A.J., ask us to revisit Shiffra, arguing that
it was wrongly decided, is unworkable, and its rationale has
been undermined by subsequent developments in the law. We
agree, and therefore overrule Shiffra.3
All subsequent references to the Wisconsin Statutes are to
1
the 2019-20 version unless otherwise indicated.
Even though a Shiffra motion could in theory seek in
2
camera review of any witness's records, as a practical matter,
such motions almost always seek review of the victim's records.
See Wis. Stat. § 950.02(4)(a) (defining "victim"). For that
reason, and for simplicity, we refer to the privilege-holder as
the "victim" throughout this opinion.
Although many subsequent cases have applied Shiffra, we
3
overrule those cases only to the extent they can be read to
permit in camera review of privately held, privileged health
records in a criminal case upon a showing of materiality. See,
e.g., State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646
N.W.2d 298; State v. Rizzo, 2002 WI 20, 250 Wis. 2d 407, 640
N.W.2d 93; State v. Solberg, 211 Wis. 2d 372, 564 N.W.2d 775(1997); State v. Behnke, 203 Wis. 2d 43, 553 N.W.2d 265 (Ct.
App. 1996); State v. S.H., 159 Wis. 2d 730, 465 N.W.2d 238 (Ct.
App. 1990); Rock Cnty. Dep't of Soc. Servs. v. DeLeu, 143
Wis. 2d 508, 422 N.W.2d 142 (Ct. App. 1988). As explained more
fully below, we hold that Shiffra incorrectly concluded that the
United States Supreme Court's decision in Pennsylvania v.
Ritchie, 480 U.S. 39 (1987) applied to privately held,
privileged health records. Nevertheless, nothing in our opinion
should be read as questioning Ritchie itself.
2
No. 2019AP664-CR
I
¶2 Johnson was charged with several felonies in
connection with allegedly sexually assaulting his daughter,
K.L.J., and his son, T.A.J. He sought in camera review of
T.A.J.'s mental health and counseling records,4 citing Shiffra
and State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298.5
Although the State did not take a position on the motion for in
camera review, T.A.J. submitted a brief in opposition. Johnson
argued, and the circuit court6 agreed, that T.A.J. lacked
standing to oppose the motion.7
¶3 The court of appeals reversed the circuit court's
decision in an interlocutory appeal, holding that a 2020
amendment to the Wisconsin Constitution, Marsy's Law, gave crime
victims like T.A.J. standing to oppose Shiffra motions. See
State v. Johnson, 2020 WI App 73, ¶¶26, 46-47, 394 Wis. 2d 807,
951 N.W.2d 616; see also Wis. Const. art. I, § 9m.
4 Johnson also sought in camera review of K.L.J.'s privately
held mental health treatment records. Like T.A.J., the circuit
court subsequently concluded that K.L.J. lacked standing to
oppose Johnson's motion. Because K.L.J. did not appeal the
circuit court's decision on standing, only T.A.J.'s arguments
are before us.
5 As explained below, Green refined the standard for
obtaining in camera review of privately held, privileged health
records announced in Shiffra.
6 The Honorable Raymond S. Huber of the Waupaca County
Circuit Court presided.
7 The circuit court has not yet ruled on Johnson's motion
for in camera review of T.A.J.'s records, and this case remains
in a pre-trial posture.
3
No. 2019AP664-CR
¶4 After we granted Johnson's petition for review, the
parties' briefs understandably focused on the issue of whether
T.A.J. has standing to oppose Johnson's motion. The State also
asserted, however, that Shiffra was wrongly decided. Following
oral argument last term, we ordered the parties to file
supplemental briefs in response to a single question: "Should
the court overrule State v. Shiffra . . . ?"
II
¶5 Before tackling that question, we first provide some
background on confidentiality and privilege, the statutes that
apply to health records, and the way the statutory privilege in
§ 905.04 interacts with Shiffra and Green. We then discuss
Shiffra and the cases on which it relied.
A
¶6 Although confidentiality and privilege are related,
they are nonetheless distinct concepts. As we have previously
explained, confidential information is "that which is 'meant to
be kept secret.'" In re John Doe Proceeding, 2004 WI 65, ¶15,
272 Wis. 2d 208, 680 N.W.2d 792 (quoting Black's Law Dictionary
294 (7th ed. 1999)). Privilege, meanwhile, "is a broader
concept," which includes "the legal right not to provide certain
data when faced with a valid subpoena." Id.; see also Burnett
v. Alt, 224 Wis. 2d 72, 85, 589 N.W.2d 21 (1999). "Privileges
are the exception, not the rule." Alt, 224 Wis. 2d at 85.
Unless a privilege is provided by statute "or inherent or
4
No. 2019AP664-CR
implicit in statute or in rules adopted by the supreme court or
required by the constitution of the United States or Wisconsin,"
no person may refuse to be a witness or disclose "any matter,"
"any object," or any "writing." Wis. Stat. § 905.01(1)-(3); see
also State v. Gilbert, 109 Wis. 2d 501, 505, 326 N.W.2d 744(1982) (explaining that privileges are the exception to the
"fundamental tenet of our modern legal system . . . that the
public has a right to every person's evidence").
¶7 Both of these concepts are implicated when health
records are at issue. With respect to confidentiality, Wis.
Stat. § 146.82(1) provides that "[a]ll patient health care
records shall remain confidential." And as for privilege, Wis.
Stat. § 905.04(2) states that patients have "a privilege to
refuse to disclose and to prevent any other person from
disclosing confidential communications made or information
obtained or disseminated for purposes of diagnosis or treatment
of the patient's physical, mental or emotional condition."
¶8 There are exceptions to these confidentiality and
privilege statutes. For instance, § 146.82(2)(a)4. provides
that otherwise confidential patient health records may be
disclosed pursuant to "a lawful order of a court of record."
There is no similar generally applicable exception to the
privilege in § 905.04(2), however. Instead, § 905.04 contains
several narrow exceptions to the privilege, for example when
records are created pursuant to a court-ordered examination "for
purposes of guardianship, protective services or protective
placement." § 905.04(4)(b). There is no such exception to the
5
No. 2019AP664-CR
privilege in § 905.04(2), however, for court-ordered in camera
review of a victim's privately-held, privileged health records
upon a criminal defendant's motion.
¶9 Nevertheless, the court of appeals created such an
exception in Shiffra when it held that a defendant is "entitled
to an in camera inspection" of a victim's privately-held,
otherwise privileged health records "if [the defendant] meets
the burden of making a preliminary showing of materiality."
Shiffra, 175 Wis. 2d at 607. To meet that burden, the defendant
must show "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." Id. at 608. Although Shiffra said a
defendant was "entitled" to in camera review upon meeting that
burden, that was an overstatement. See id. at 607. As Shiffra
explained, unlike with a subpoena or other court-ordered
compulsory process, a victim could not be held in contempt for
refusing to allow in camera review after the defendant made an
initial showing of materiality because "[the victim] is not
obligated to disclose her psychiatric records."8 See id. at 612.
Instead, once the defendant makes a showing of materiality,
victims are caught between a rock and hard place: Either turn
Shiffra referred to "psychiatric" and "mental health
8
treatment" records specifically, but the court of appeals
subsequently held that Shiffra was not limited only to those
types of records. See State v. Navarro, 2001 WI App 225, ¶9,
248 Wis. 2d 396, 636 N.W.2d 481. For that reason, throughout
this opinion we describe Shiffra as applying generally to
"health records."
6
No. 2019AP664-CR
over the privileged health records for in camera review or be
precluded from testifying at trial. See id. That remedy was,
in the Shiffra court's view, "the only method of protecting [the
defendant's] right to a fair trial . . . if [the victim] refused
to disclose her records." Id.¶10 We raised the threshold for materiality in Green,
holding that the standard expressed in Shiffra——that the records
"may be" necessary to determine guilt or innocence——was
insufficient "[i]n light of the strong public policy favoring
protection of . . . counseling records." See Green, 253
Wis. 2d 356, ¶32. Accordingly, we held that defendants must
show "a 'reasonable likelihood' that the records will be
necessary to a determination of guilt or innocence" to obtain in
camera review of privileged health records. Id. (quoting
Goldsmith v. State, 651 A.2d 866, 877 (Md. 1995)).
Additionally, we explained that the evidence sought must not be
"cumulative to other evidence available to the defendant," and
that it is the defendant's duty "to reasonably investigate
information related to the victim before setting forth an offer
of proof and to clearly articulate how the information sought
corresponds to his or her theory of defense." Id., ¶¶34-35.
¶11 The upshot of Shiffra and Green is that a defendant
may obtain an in camera review of a victim's health records——
despite the statutory privilege against disclosure——if he shows
a reasonable likelihood that the records are not cumulative and
are "necessary" to a determination of guilt or innocence. See
id. ¶32. And if the victim does not submit his or her records
7
No. 2019AP664-CR
for that in camera review, then he or she may not testify at
trial. See Shiffra, 175 Wis. 2d at 612.
B
¶12 Shiffra created this framework based on its reading of
a United States Supreme Court decision, Pennsylvania v. Ritchie,
480 U.S. 39 (1987), and two court of appeals decisions that
discussed Ritchie, Rock County Department of Social Services v.
DeLeu, 143 Wis. 2d 508, 422 N.W.2d 142 (Ct. App. 1988) and State
v. S.H., 159 Wis. 2d 730, 465 N.W.2d 238 (Ct. App. 1990).
¶13 Ritchie addressed whether a criminal defendant had a
right to access confidential——not privileged——records from a
state child protective services agency responsible for
"investigating cases of suspected mistreatment and neglect."
480 U.S. at 43. After an investigation by that agency, Ritchie
was charged with repeatedly assaulting his daughter. Id.Before trial, he served the agency with a subpoena for its
investigative records. Id. The agency refused to comply,
however, noting that state law required that the records remain
confidential unless a court ordered otherwise. See id. at 43-
44. The trial court denied Ritchie's motion for disclosure of
the records and he was convicted at trial. Id. at 44-45.
¶14 Ritchie appealed, arguing that the failure to disclose
the contents of the agency's file violated his Sixth and
Fourteenth Amendment rights. See id. at 45. The United States
Supreme Court held that Ritchie's due process rights were
violated, drawing heavily on Brady v. Maryland, 373 U.S. 838
No. 2019AP664-CR
(1963), which requires that the prosecution turn over to the
defendant evidence in its possession that is favorable to the
accused and material to his defense. See Ritchie, 480 U.S. at
56-58; see also Brady, 373 U.S. at 87. The Ritchie Court
seemingly assumed that the evidence satisfied Brady's possession
requirement, perhaps because the agency that held the records
was responsible for investigating child abuse cases. See
Ritchie, 480 U.S. at 57; see also Strickler v. Greene, 527 U.S.
263, 281 (1999) (stating that evidence in the government's
"possession" for Brady purposes includes "'favorable evidence
known to others acting on the government's behalf in th[e]
case'" (quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995)). It
then explained that Brady's materiality requirement was
difficult to evaluate because neither the parties nor the court
had reviewed the files. Ritchie, 480 U.S. at 57. As a
workaround, the Court held that in camera review was the
appropriate way to assess the materiality of the confidential
records, in part because state law did not guarantee
confidentiality in all circumstances. See id. 57-61. Instead,
state law "contemplated some use of [agency] records in judicial
proceedings," namely after a court order. Id. at 58. Thus,
Ritchie held that "[the defendant's] interest (as well as that
of the Commonwealth) in ensuring a fair trial can be protected
fully by requiring that the [agency's] files be submitted only
to the trial court for in camera review." Id. at 60.
¶15 Two court of appeals decisions discussed Ritchie
before Shiffra was decided. The first, DeLeu, dealt with the
9
No. 2019AP664-CR
statutory requirements for releasing a county department of
social services' files for use in a criminal case. See 143
Wis. 2d at 509. Like the records in Ritchie, the department's
files were confidential——not privileged——and subject to
disclosure "by order of the court." Id. at 510 (quoting Wis.
Stat. § 48.78(2)(a) (1987-88)); see also Ritchie, 480 U.S. at
43-44. The court of appeals concluded that the orders directing
disclosure of the department's files were invalid because the
statutory procedure for releasing them was not followed. See
DeLeu, 143 Wis. 2d at 510-11. Additionally, the court of
appeals noted that Ritchie was not implicated because the
criminal defendant who sought release of the department's files
"ha[d] not moved the trial court in his criminal cases to make
an in camera review of the agency records." Id. at 510.
Nevertheless, DeLeu gave a broad description of Ritchie's
holding, stating "that a criminal defendant is entitled to an in
camera review by the trial court of confidential records if
those records are material to the defendant's defense," and
"that [the defendant] is entitled to such a review . . .
provided he makes a preliminary showing that the files contain
evidence material to his defense." Id. (citing Ritchie, 480
U.S. at 60-61).
¶16 The court of appeals relied on that broad language in
a subsequent case, S.H., suggesting for the first time that the
reasoning of Ritchie and DeLeu also applied to health records
that are privileged under § 905.04——not merely confidential——and
not in the State's possession. See S.H., 159 Wis. 2d at 737-38.
10
No. 2019AP664-CR
In S.H., the defendant was charged with sexually assaulting his
three children. Id. at 733. Before trial, he signed medical
release forms pursuant to Wis. Stat. § 51.30(5)(a) (1989-90)9
seeking release of his children's records from a private
counseling center. The children's guardian ad litem invoked the
privilege against the disclosure of health records contained in
§ 905.04, and the trial court blocked the records' release. See
S.H., 159 Wis. 2d at 734; see also § 51.30(6) (stating that
§ 905.04 "supersede[s] [§ 51.30] with respect to communications
between physicians and patients"). Although the court of
appeals agreed that the records were privileged and that the
release form did not authorize disclosure, it nonetheless stated
that Ritchie "controls [the defendant's] constitutional right to
compel disclosure of confidential records," and that "if a
defendant makes a preliminary showing that the records contain
evidence material to his defense, he is entitled to an in camera
review by the trial court of those records." S.H., 159
Wis. 2d at 737-38 (citing DeLeu, 143 Wis. 2d at 511).10
¶17 That brings us back to Shiffra, which relied on
Ritchie, DeLeu, and S.H. to conclude that a criminal defendant
is entitled to an in camera review of a victim's privately held,
9 All statutory citations in this paragraph are to the 1989-
90 version.
10Because the defendant did not appeal a circuit court
decision denying in camera review, however, S.H. did not address
whether the defendant made the preliminary showing necessary to
obtain in camera review of the counseling records. See 159
Wis. 2d at 738.
11
No. 2019AP664-CR
privileged health records if he or she "make[s] a preliminary
showing that the sought-after evidence is material to his or her
defense." Shiffra, 175 Wis. 2d at 605. The court of appeals
explained that "Wisconsin precedent . . . clearly makes Ritchie
applicable to cases in which the information sought by the
defense is protected by statute and is not in the possession of
the state." Id. at 606-07 (citing DeLeu, 143 Wis. 2d at 511;
S.H., 159 Wis. 2d at 736). For that reason, the court dismissed
the State's argument that the victim's "psychiatric history
[and] psychiatric records" differed from the records in Ritchie
because they were privileged against disclosure under § 905.04,
not merely confidential, and were not in the State's possession.
See id. at 603, 606-07. Additionally, the court held that
suppression of the victim's testimony at trial was the only
appropriate remedy for her refusal to release the records for in
camera review since she was not "obligated to disclose her
psychiatric records," and therefore could not be held in
contempt. Id. at 612.
III
¶18 The question is whether we should overrule Shiffra.
To answer that question, we must first address the role of stare
decisis in our analysis.
A
¶19 We have repeatedly recognized the importance of stare
decisis to the rule of law. See, e.g., State v. Denny, 2017 WI
12No. 2019AP664-CR
17, ¶69, 373 Wis. 2d 390, 891 N.W.2d 144; State v. Luedtke, 2015
WI 42, ¶40, 362 Wis. 2d 1, 863 N.W.2d 592. That is why we
require a special justification in order to overturn our
precedent. See Johnson Controls, Inc. v. Employers Ins. of
Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665 N.W.2d 257(quoting Schultz v. Natwick, 2002 WI 125, ¶37, 257 Wis. 2d 19,
653 N.W.2d 266).
¶20 We have specifically identified five such special
justifications. See State v. Young, 2006 WI 98, ¶51 n.16, 294
Wis. 2d 1, 717 N.W.2d 729. A special justification for
overruling precedent exists when: (1) the law has changed in a
way that undermines the prior decision's rationale; (2) there is
a "need to make a decision correspond to newly ascertained
facts;" (3) our precedent "has become detrimental to coherence
and consistency in the law;" (4) the decision is "unsound in
principle;" or (5) it is "unworkable in practice." Id. (citing
Johnson Controls, 264 Wis. 2d 60, ¶¶98-99). Any one of these
special justifications is sufficient to justify overruling
precedent. See State v. Roberson, 2019 WI 102, ¶50, 389
Wis. 2d 190, 935 N.W.2d 813. But we have never required a
special justification to overturn a decision of the court of
appeals. See State v. Lira, 2021 WI 81, ¶45, 399 Wis. 2d 419,
966 N.W.2d 605. Since Shiffra is a court of appeals decision,
we therefore do not need a special justification to overrule it.
¶21 That being said, Shiffra is unlike most court of
appeals decisions because on three prior occasions we signaled
that we approved of it. The first time was in State v. Solberg,
13
No. 2019AP664-CR
211 Wis. 2d 372, 564 N.W.2d 775 (1997), where we recited the
materiality standard in Shiffra and said that "giving the
defendant an opportunity to have the circuit court conduct an in
camera review of the privileged records, while still allowing
the patient to preclude that review, addresse[d] both the
interests of the defendant and the patient." Id. at 383, 387.
The second was in State v. Rizzo, 2002 WI 20, 250 Wis. 2d 407,
640 N.W.2d 93, where the defendant argued that he was entitled
to access a victim's treatment records even after the circuit
court did an in camera review because it was necessary to
conduct an effective cross-examination of the victim's
therapist, who testified at trial as a Jensen11 witness. Id.,
¶48. We rejected that claim because it would have upset the
balance Shiffra struck between "the victim’s interest in
confidentiality [and] the constitutional rights of the
defendant." Id., ¶53. Neither Solberg nor Rizzo examined the
basis for the court of appeals' holding in Shiffra, however, and
instead took its framework as a given. We went further though
in a third case, Green, and rejected the State's argument that
Shiffra was wrongly decided. But we did so only because Solberg
and Rizzo had "recognized the validity of Shiffra." Green, 253
Wis. 2d 356, ¶21 n.4. Nevertheless, Green, Solberg, and Rizzo
never did what the State and T.A.J. ask us to do in this case:
See State v. Jensen, 147 Wis. 2d 240, 250, 432 N.W.2d 91311
(1988) (explaining that expert testimony that a sexual assault
victim's behavior is consistent with the behavior of sexual
assault victims generally may be admissible).
14
No. 2019AP664-CR
analyze whether Shiffra was wrongly decided. See Green, 253
Wis. 2d 356, ¶21 n.4; see also Rizzo, 250 Wis. 2d 407, ¶53;
Solberg, 211 Wis. 2d at 386-87.
¶22 We have on two prior occasions, however, been asked to
perform that analysis. In both State v. Johnson, 2014 WI 16,
¶13, 353 Wis. 2d 119, 846 N.W.2d 1 (per curiam) and State v.
Lynch, 2016 WI 66, ¶¶6-8 371 Wis. 2d 1, 885 N.W.2d 89 (lead
op.), the State argued that Shiffra was wrongly decided and
should be overturned. And each time, the court was too divided
to reach a majority holding. See Lynch, 371 Wis. 2d 1, ¶7
(stating that three justices would have overruled Shiffra, one
would have applied it as it was, and three would have modified
it in various ways); Johnson, 353 Wis. 2d 119, ¶¶7-11
(explaining that, of the five participating justices, two would
have modified Shiffra, two would have reaffirmed it, and one
would have overruled it). As Johnson and Lynch demonstrate, the
validity of Shiffra remains an open question, and one on which
there has been substantial disagreement. Nevertheless, because
we arguably applied Shiffra in several prior cases, we assume
without deciding that the framework Shiffra articulated should
be treated as precedent from this court, and that we may
overrule it only if there is a "special justification" for doing
so. See Young, 294 Wis. 2d 1, ¶51.
B
¶23 We conclude that there are three special
justifications for overruling Shiffra. First, Shiffra is
15
No. 2019AP664-CR
unsound in principle because it incorrectly concluded that
Ritchie applied to privileged (not just confidential) records
not in the State's possession and because it undermines the
therapist-patient relationship. Second, the standard for
obtaining in camera review articulated in Shiffra and Green is
unworkable in practice. And third, Shiffra has been undermined
by the adoption of new statutory and constitutional provisions
protecting the rights of victims, and is now detrimental to
coherence in the law. See, e.g., Wis. Const. art. I, § 9m; Wis.
Stat. § 950.04.
1
¶24 Shiffra is unsound in principle because it incorrectly
concluded that Ritchie applied to privately held and statutorily
privileged health records. See Roberson, 389 Wis. 2d 190, ¶51
("A decision is unsound in principle when it relies on an
erroneous understanding of United States Supreme Court decisions
. . . because the misunderstanding and faulty application risk
perpetuating erroneous declarations of the law." (internal
alterations and quotation marks omitted)). Additionally,
Shiffra's alternative, public-policy based rationale is unsound
in principle because it undermines the therapist-patient
relationship. See Shiffra, 175 Wis. 2d at 611-12.
¶25 As explained previously, the records in Ritchie were
in the state's possession because they were held by a state
investigative agency. See Ritchie, 480 U.S. at 43. By
contrast, the health records at issue in Shiffra were held by a
16
No. 2019AP664-CR
private entity and thus were entirely outside the State's
possession or control. Shiffra, 175 Wis. 2d at 607. That is a
meaningful distinction because the holding in Ritchie——that the
defendant had a due process right to an in camera review of the
agency's files——rested on Brady, which imposes a disclosure
obligation only on exculpatory and material evidence in the
state's possession. See Ritchie, 480 U.S. at 57 (citing Brady,
373 U.S. at 87). Shiffra brushed this difference aside,
however, because it believed DeLeu and S.H. "ma[de] Ritchie
applicable to cases in which the information sought by the
defense is protected by statute and is not in the possession of
the state." Shiffra, 175 Wis. 2d at 606-07. But the portions
of DeLeu and S.H. on which Shiffra relied gave no explanation
for how the rule in Ritchie could apply to privately held
records. Indeed, as many other courts have said, Ritchie simply
does not apply to privately held records.12 See, e.g., United
States v. Hach, 162 F.3d 937, 947 (7th Cir. 1998); Vaughn v.
State, 608 S.W.3d 569, 575 (Ark. 2020); Goldsmith, 651 A.2d at
872; but see Burns v. State, 968 A.2d 1012, 1024-25 (Del. 2009).
¶26 Additionally, Shiffra and the cases preceding it did
not address the distinction between privilege and
For this reason, Ritchie also would not apply to requests
12
for in camera review of privately-held records that are merely
confidential, not privileged, under Wis. Stat. § 146.82(1).
Even though such records may be released "[u]nder a lawful order
of a court of record," see § 146.82(2)(a)4., Ritchie does not
provide defendants with a due process right to in camera review
of confidential records that are not in the State's possession.
See Ritchie, 480 U.S. at 57.
17
No. 2019AP664-CR
confidentiality. The records at issue in Shiffra and S.H. were
privileged under § 905.04(2), which states that "[a] patient has
a privilege to refuse to disclose and to prevent any other from
disclosing confidential communications made or information
obtained or disseminated for purposes of diagnosis or
treatment." Shiffra dismissed this statutory privilege,
claiming that under S.H. and DeLeu, "a statute allowing for
confidentiality is not a barrier to in camera review." Shiffra,
175 Wis. 2d at 607. But § 905.04 is not merely a "statute
allowing for confidentiality"——it provides that certain records
are privileged from disclosure. As the text of § 905.04(2)
demonstrates, and as discussed above, confidentiality and
privilege are distinct concepts. See § 905.04(2) (granting
patients "a privilege to refuse to disclose and to prevent any
other from disclosing confidential communications." (emphasis
added)).
¶27 Shiffra overlooked this point, and in doing so,
broadened the holding in Ritchie. In Ritchie, the records at
issue were confidential under a statute that specifically
allowed for disclosure pursuant to a court order. Ritchie, 480
U.S. at 43-44. Thus, Ritchie was "not a case where a state
statute grant[ed] [the agency] the absolute authority to shield
its files from all eyes." Id. 57-58. Section 905.04, in
contrast, creates a privilege without a generally applicable
exception for disclosure pursuant to a court order. Instead,
§ 905.04(4) contains a number of specific and narrow exceptions,
none of which authorize disclosure for in camera review merely
18
No. 2019AP664-CR
because a criminal defendant makes a showing that the privileged
records may contain information material to his defense. In the
absence of such an exception, § 905.04(2) means what it says:
that patients "ha[ve] a privilege to refuse to disclose and to
prevent any other person from disclosing" their health records.
§ 905.04(2). We do not create exceptions to other statutory
privileges like the attorney-client privilege or the privilege
for confidential communications to members of the clergy simply
because the privileged communications may contain information
material to a criminal defendant's defense. See Wis. Stat.
§§ 905.03, 905.06. Shiffra offered no justification for its
decision to do so in the case of the patient-health care
provider privilege, and Ritchie does not provide one either.
¶28 Shiffra's references to a criminal defendant's right
to present a complete defense do not salvage its
misinterpretation of Ritchie. Shiffra correctly observed that
defendants have a due process right to a "meaningful opportunity
to present a complete defense." See Shiffra, 175 Wis. 2d at 605
(citing California v. Trombetta, 467 U.S. 479 (1984)). But
Ritchie never discussed or relied on cases involving that right.
Moreover, the United States Supreme Court has never held that
the right to present a complete defense applies before trial.
Instead, the Court has said the right applies when, for example,
state evidentiary rules arbitrarily exclude a defendant from
introducing evidence at trial without a legitimate purpose for
doing so. See Holmes v. South Carolina, 547 U.S. 319, 324-28
(2006) ("This right is abridged by evidence rules that infringe
19
No. 2019AP664-CR
upon a weighty interest of the accused and are arbitrary or
disproportionate to the purposes they are designed to serve."
(internal alterations and quotation marks omitted)). Shiffra
did not explain how the right to present a complete defense
could be implicated by a pretrial discovery motion seeking in
camera review of a victim's privately held, privileged health
records.
¶29 Simply put, nothing in Ritchie supports Shiffra's
conclusion that criminal defendants have a due process right to
in camera review of a victim's privately held, privileged health
records upon a showing of materiality.13 Accordingly, we hold
that Shiffra is unsound in principle because it incorrectly
concluded that Ritchie applied to privately held, privileged
health records. See Roberson, 389 Wis. 2d 190, ¶51.
¶30 Nevertheless, Shiffra rested on more than just its
misreading of Ritchie. It also relied on "[p]ublic policy and
the history of our judicial system" as justifying its efforts to
The dissent concedes as much, admitting that "[t]here is
13
no constitutional right to an in camera review." Dissent, ¶37.
Nevertheless, the dissent suggests that overruling Shiffra is
unjustified because in camera review is "a means of fulfilling"
the right to present a complete defense. Id. But that gets the
analysis backwards. Holding that criminal defendants have a
general right to pretrial discovery, for example, might be a
good way of "fulfilling" the defendant's right to present a
complete defense. Yet there is still "no general constitutional
right to discovery in a criminal case." See Weatherford v.
Bursey, 429 U.S. 545, 559 (1977). So too with in camera review
of privately held, privileged health records upon a showing of
materiality. Because the Constitution does not guarantee a
right to in camera review of privately held, privileged health
records, Shiffra was wrong to hold otherwise.
20
No. 2019AP664-CR
balance "the sometimes competing goals of confidential privilege
and the right to put on a defense."14 Shiffra, 175 Wis. 2d at
611-12. We have described Shiffra in similar terms as well.
See Green, 253 Wis. 2d 356, ¶23 (characterizing Shiffra as
"balancing" the "competing rights and interests involved when a
defendant seeks an in camera review of privileged records"); see
also Rizzo, 250 Wis. 2d 407, ¶53. But courts of course lack the
power to rewrite statutes in the name of public policy. And
even if the court of appeals had that power, Shiffra would be
unsound in this respect as well because the rule it adopted
undermines the therapist-patient relationship.
¶31 As the United States Supreme Court explained, "[l]ike
the spousal and attorney-client privileges, the psychotherapist-
patient privilege is 'rooted in the imperative need for
confidence and trust.'" Jaffee v. Redmond, 518 U.S. 1, 10
(1996) (quoting Trammel v. United States, 445 U.S. 40, 51
(1980)). That is because "[e]ffective psychotherapy . . .
depends upon an atmosphere of confidence and trust in which the
patient is willing to make a frank and complete disclosure of
facts, emotions, memories, and fears," often about sensitive
issues. Id. The statutory privilege in § 905.04(2) protects
that atmosphere of confidence and trust by providing that
Although the Constitution, as interpreted in Ritchie,
14
does not justify Shiffra's holding, nothing in the Constitution
prohibits states from adopting a similar rule. See, e.g., Iowa
Code § 622.10(4) (2021) (authorizing criminal defendants to
obtain in camera review of privately held, privileged health
records upon a showing of materiality).
21
No. 2019AP664-CR
patients' confidential communications with their health care
providers are privileged against disclosure. See Steinberg v.
Jensen, 194 Wis. 2d 439, 459, 534 N.W.2d 361 (1995).
¶32 In camera review, even if it does not ultimately lead
to the disclosure to the defense of any privileged health
records, still undermines that statutory privilege. A patient's
willingness to discuss sensitive issues will be chilled if she
knows that her most private thoughts and fears might be revealed
to a circuit court judge in the context of a criminal case. See
Jaffee, 518 U.S. at 10 ("[T]he mere possibility of disclosure
may impede development of the confidential relationship
necessary for successful treatment."). And that is because
"'[a]n uncertain privilege, or one which purports to be certain
but results in widely varying applications by the courts, is
little better than no privilege at all.'" Id. at 18 (quoting
Upjohn Co. v. United States, 449 U.S. 383, 393 (1981)). As
other courts have recognized, in camera review "'intrudes on the
rights of the victim and dilutes the statutory privilege,'" even
if that review does not lead to broader disclosure of privileged
communications. See State v. Pinder, 678 So. 2d 410, 415 (Fla.
Dist. Ct. App. 1996) (quoting State v. J.G., 619 A.2d 232, 237
(N.J. Super. Ct. App. Div. 1993)); see also In re Crisis
Connection, Inc., 949 N.E.2d 789, 802 (Ind. 2011); Commonwealth
v. Kennedy, 604 A.2d 1036, 1046 (Pa. Super. Ct. 1992) ("The
compelling interest in allowing [a] rehabilitative process to
occur in private is not to build a case for the prosecution, but
22
No. 2019AP664-CR
rather to deal with the trauma of the assault and begin the
healing process.").
¶33 Therefore, Shiffra was wrong to imply that in camera
review is a minimal intrusion on a victim's privacy. See
Shiffra, 175 Wis. 2d at 611-12. Because Shiffra undermines the
trust necessary to an effective patient-health care provider
relationship and, with it, "[t]he mental health of our
citizenry, . . . a public good of transcendent importance," we
conclude it is unsound in principle in this respect as well.
See Jaffee, 518 U.S. at 11.
2
¶34 Shiffra is also unworkable in practice because it
cannot be applied consistently and is inherently speculative.
¶35 As discussed previously, we said in Green that in
camera review of a victim's privileged health records is
available only if a defendant "set[s] 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" that "is not merely
cumulative to other evidence available to the defendant."
Green, 253 Wis. 2d 356, ¶34. In this context, information that
is "necessary to a determination of guilt or innocence" is
evidence that "'tends to create a reasonable doubt that might
not otherwise exist.'" Id. (quoting Commonwealth v. Fuller, 667
N.E.2d 847, 855 (Mass. 1996), abrogated on other grounds by
Commonwealth v. Dwyer, 859 N.E.2d 400, 414 (Mass. 2006)).
23
No. 2019AP664-CR
¶36 Reading this language in isolation, one would think
the standard for obtaining in camera review is high. After all,
unless a defendant already knows what is in a victim's records,
how can he show a reasonable likelihood that the records contain
relevant information "necessary to a determination of guilt or
innocence?" Id. (emphasis added). Similarly, without knowing
the contents of the victim's records, how can a defendant "show
more than a mere possibility that the records will contain
evidence that may be helpful or useful to the defense?" Id.,
¶33; see also id. (stating that "[t]he mere contention that the
victim has been involved in counseling related to prior sexual
assaults or the current sexual assault is insufficient").
¶37 Yet at the same time, Green also said that the
standard it adopted was "not intended . . . to be unduly high
for the defendant." Id., ¶35. To that end, Green explained
that because "[t]he defendant, of course, will most often be
unable to determine the specific information in the records,"
"in cases where it is a close call, the circuit court should
generally provide an in camera review." Id.
¶38 As these quotes demonstrate, Green is in tension with
itself. And given that tension, it should not be surprising
that courts have struggled to apply Green. Take, for example,
two cases in which defendants made similar allegations: that a
victim was receiving counseling at the time the alleged crimes
occurred, that the counseling was meant to address the victim's
relationship with the defendant or events related to the crimes
charged, and that in camera review of the records would reveal
24
No. 2019AP664-CR
information about those alleged offenses. See State v. Johnson,
No. 2011AP2864-CRAC, unpublished slip op. (Wis. Ct. App. Apr.
18, 2012), aff'd as modified 2013 WI 59, 348 Wis. 2d 450, 832
N.W.2d 609 (per curiam), reconsideration granted, 353 Wis. 2d
119; State v. Keith, No. 2010AP1667-CR, unpublished slip op.
(Wis. Ct. App. May 24, 2011). In one of those cases, the court
of appeals held that the defendant made a sufficient showing for
in camera review. See Johnson, No. 2011AP2864-CRAC, at ¶14. In
the other, however, the court of appeals held that the
defendant's motion was "based on pure speculation." See Keith,
No. 2010AP1667-CR, at ¶13.
¶39 As these court of appeals decisions illustrate,
Shiffra (as modified by Green) is unworkable because it cannot
be applied consistently. But court of appeals decisions tell
only part of the story. Circuit courts also struggle to apply
Shiffra consistently because it is inherently speculative. When
a Shiffra motion is filed, neither the defendant, the State, nor
the circuit court have seen the victim's treatment records. Yet
the circuit court must decide, often based on vague allegations
and an affidavit from the defendant, whether it is reasonably
likely that records the judge has never seen contain information
"necessary to a determination of guilt or innocence." See
Green, 253 Wis. 2d 356, ¶34. Because "[t]he defendant, of
course, will most often be unable to determine the specific
information in the records," we explained that "the circuit
court should generally provide an in camera review" in close
cases. Id., ¶35. Despite that, the court of appeals has
25
No. 2019AP664-CR
criticized circuit courts for appearing to "consider
possibilities of what the counseling records might contain
rather than the higher 'reasonable likelihood' standard" we
articulated in Green. See State v. Lewis, 2009AP2531-CR,
unpublished slip op., ¶14 (Wis. Ct. App. Aug. 26, 2010). The
problem, however, is not with circuit courts' application of
Green but with the standard itself. Shiffra and Green give
circuit courts no choice but to guess at whether a victim's
records contain material information and to resolve close
questions in favor of in camera review. And for that reason, we
hold that it is unworkable in practice.
3
¶40 Finally, since it was decided, Shiffra has been
undermined by two related developments in the law: the removal
of procedural and evidentiary barriers to prosecuting sexual
assault cases and the passage of statutory and constitutional
protections for crime victims.15 For these reasons, we also
conclude that Shiffra is detrimental to coherence in the law.
We acknowledge, of course, that these changes in the law
15
would not be material to our analysis if Shiffra was right that
the Constitution grants criminal defendants a right to in camera
review of privately held, privileged health records upon a
showing of materiality. But as we explained previously, the
Constitution, as interpreted in Ritchie, does not create such a
right. Nevertheless, we discuss these changes in the law
because they undermine Shiffra's alternative rationale, which it
said was based on "[p]ublic policy" and balancing the competing
interests of privilege holders and criminal defendants, rather
than the Constitution. See Shiffra, 175 Wis. 2d at 611-12.
26
No. 2019AP664-CR
¶41 Historically, the law adopted a "stance of overt
suspicion toward rape accusers." See Deborah Tuerkheimer,
Incredible Women: Sexual Violence and the Credibility Discount,
166 U. Pa. L. Rev. 1, 21 (2017). As recently as the 1970s, this
court addressed "policy considerations" that "proof of rape
[should be] difficult to prevent 'after thought' rapes, i.e.,
the possibility of women experiencing an unpleasant sex
experience being motivated to 'get even' and making a claim of
being raped." State v. Herfel, 49 Wis. 2d 513, 517, 182
N.W.2d 232 (1971). For that reason, Wisconsin law required the
victim's "utmost physical resistance" in order to prove sexual
assault. See Brown v. State, 127 Wis. 193, 206, 106 N.W. 536(1906). Additionally, "[b]efore rape shield legislation,
defendants in sexual assault cases would use a victim's sexual
history to attack the credibility of the victim and the victim's
story." State v. Mulhern, 2022 WI 42, ¶60, 402 Wis. 2d 64, 975
N.W.2d 209 (Ziegler, C.J., concurring).
¶42 Over the last several decades, our law has evolved
away from this distrust of sexual assault victims, and removed
many of the procedural and evidentiary barriers to prosecuting
those cases. See Wis. Stat. § 972.11(2)(b) (prohibiting
introduction of "evidence concerning the complaining witness's
prior sexual conduct" subject to narrow exceptions); State v.
Clark, 87 Wis. 2d 804, 815, 275 N.W.2d 715 (1979) (explaining
that, following amendments to the definition of consent in Wis.
Stat. § 940.225(4) (1977-78) "failure to resist" sexual assault
"is not consent; the statute requires 'words' or 'overt acts'
27
No. 2019AP664-CR
demonstrating 'freely given consent'"); see also Tuerkheimer,
Incredible Women, supra at 21-25 (describing similar
developments in other states).16 Moreover, Wisconsin has also
acknowledged the admissibility of expert testimony to rebut
common misconceptions about the connection between delayed
reporting, which is common in both sexual assault and domestic
violence cases, and a victim's credibility. See State v.
Jensen, 147 Wis. 2d 240, 250, 432 N.W.2d 913 (1988) ("Expert
testimony on the post-assault behavior of a sexual assault
victim is admissible in certain cases to help explain the
meaning of that behavior."); State v. Bednarz, 179 Wis. 2d 460,
467-68, 507 N.W.2d 168 (Ct. App. 1993) (permitting expert
testimony about post-traumatic stress disorder as a possible
explanation for a domestic violence victim's behavior).
¶43 Despite these changes to our law, Shiffra continues to
reflect outdated skepticism toward victims of sexual assault.
Shiffra was, after all, a sexual assault case, and the rule it
adopted rested on the concern that without in camera review of
privileged health records, defendants would be convicted based
on false reports. See Shiffra, 175 Wis. 2d at 612 (suggesting
that in camera review was necessary because the victim's
psychiatric records might reveal information bearing on her
"ability to accurately perceive events and her ability to relate
Although some of these changes occurred before Shiffra
16
was decided, Shiffra did not consider them, nor could it
appreciate their importance within the broader context of the
subsequently enacted statutory and constitutional victim's
rights provisions discussed below.
28
No. 2019AP664-CR
the truth."). But now we know that false reports of crimes are
rare, and no more common in sexual assault cases than any other
type of case.17 And yet, Shiffra motions are commonplace in
sexual assault and domestic violence cases.18 By contrast,
Shiffra motions are highly unusual in other types of cases, even
though nothing about Shiffra's rule is limited to sexual assault
17 Several studies place the rate of false reports of sexual
assault between 4.5 and 6.8 percent. See, e.g., Tuerkheimer,
supra, at 17-20 (summarizing studies that independently reviewed
allegations of sexual assault to determine whether they were
false). That rate is no higher than in other types of cases.
See Tyler J. Buller, Fighting Rape Culture with Noncorroboration
Instructions, 53 Tulsa L. Rev. 1, 6 & n.46 (2017).
Nevertheless, "studying the prevalence of false reports is
difficult because of the methodological challenge of identifying
ground truth——a difficulty that largely accounts for significant
discrepancies in findings." Tuerkheimer, supra, at 17.
Although false reports and false convictions are serious,
it is not clear why there would be fewer such reports or
convictions if we upheld Shiffra. For that to be the case we
would have to make the dubious assumption that individuals who
make false reports are frequently disclosing their falsity to
health care providers but not to other individuals, or that
cross-examination and the trial process is an ineffective tool
for exposing those false reports without access to victims'
privileged health records.
18 Although data regarding circuit court filings are not in
the record, all three of the court of appeals' non-summary
decisions over the last two years mentioning Shiffra were
domestic violence or sexual assault cases. See, e.g., State v.
Rausch, No. 2020AP197-CR, unpublished slip op., ¶4 (Wis. Ct.
App. May 11, 2022) (per curiam); State v. Steinpreis, No.
2020AP1893-CR, unpublished slip op., ¶6 (Wis. Ct. App. Mar. 9,
2022) (per curiam); State v. Hineman, No. 2020AP226-CR,
unpublished slip op., ¶¶1-2 (Wis. Ct. App. Nov. 24, 2021) (per
curiam), rev'd 2023 WI 1, 405 Wis. 2d 233, 983 N.W.2d 652; State
v. Doyle, No. 2019AP2162-CR, unpublished slip op., ¶2 (Wis. Ct.
App. June 22, 2021) (per curiam).
29
No. 2019AP664-CR
cases.19 This difference is particularly striking considering
that witness credibility is an issue in nearly every case,
regardless of the type of crime being prosecuted. Accordingly,
we conclude that Shiffra has been undermined by developments in
the law regarding sexual assault and domestic violence, and is
therefore detrimental to coherence in the law.
¶44 In addition to the changes in the law regarding sexual
assault and domestic violence, the expansion of victim's rights
laws also has undermined Shiffra. A month after Shiffra was
decided, the Wisconsin Constitution was amended to affirm that
"[t]h[e] state shall treat crime victims, as defined by law,
with fairness, dignity and respect for their privacy." See Wis.
Const. art. I § 9m (1994). A few years later, the legislature
passed a comprehensive crime victims' bill of rights, see 1997
Wis. Act 181, which was subsequently amended to grant crime
victims an enforceable right to "fairness and respect." See
Wis. Stat. § 950.04(1v)(ag). And in 2020, voters ratified
Indeed, the State was able to locate just four appellate
19
decisions in which a Shiffra motion was filed outside a sexual
assault or domestic violence case, and we have been unable to
locate any others. See State v. Kletzien, 2008 WI App 182, 314
Wis. 2d 750, 762 N.W.2d 788; State v. Ballos, 230 Wis. 2d 495,
602 N.W.2d 117 (Ct. App. 1999); State v. Kutska, No. 97-2962-CR,
unpublished slip op. (Wis. Ct. App. Sept. 22, 1998); State v.
Napper, Nos. 94-3260-CR & 94-3261-CR, unpublished slip op. (Wis.
Ct. App. Sept. 12, 1996).
30
No. 2019AP664-CR
Marsy's Law,20 which amended the Wisconsin Constitution once
again to guarantee crime victims the rights "[t]o be treated
with dignity, respect, courtesy, sensitivity, and fairness,"
"[t]o privacy," and "[t]o reasonable protection from the accused
throughout the criminal . . . justice process." See Wis. Const.
art. I § 9m(2)(a), (b), (f). Additionally, Marsy's Law
guarantees that these rights will be "protected by law in a
manner no less vigorous than the protections afforded the
accused." Id. § 9m(2).
¶45 Collectively, these changes reflect increased concern
for the rights of crime victims, as well as a broader conception
of what it means to be a crime victim. See id. § 9m(1)(a)1.
Yet Shiffra did not consider the rights of crime victims at all,
let alone the impact its holding would have on victims' privacy
or their right to be protected from the accused throughout the
criminal justice process. Instead, Shiffra equated the
government's interest in the confidentiality of its
investigative files in Ritchie with a victim's interest in her
privately held, privileged health records. But those interests
differ in important ways. A victim has an individual interest
in privacy guaranteed by Marsy's Law and in preserving the
atmosphere of trust and confidence necessary to obtain effective
medical treatment. See Wis. Const. art. I, § 9m(2)(b); Jaffee,
In a case decided today, Wisconsin Justice Initiative,
20
Inc. v. WEC, 2023 WI 38, ___ Wis. 2d ___, ___ N.W.2d ___, we
conclude that the process by which Marsy's Law was adopted and
ratified complied with the requirements of the Wisconsin
constitution.
31
No. 2019AP664-CR
518 U.S. at 10. In contrast, the state's interest in
maintaining the confidentiality of the files at issue in Ritchie
related to investigating and prosecuting abuse cases. See
Ritchie, 480 U.S. at 60. Although these interests have some
things in common, namely the shared interest in avoiding
"general disclosure" of reports of assault or abuse, victims
have their own unique interests in preserving the privacy of
their confidential communications with health care providers to
obtain effective treatment. See id.; see also § 905.04(2).
¶46 Shiffra did not consider the different interests of
the State and victims, and it could not have considered the
expansion of victims' rights laws after it was decided. We
therefore conclude that these subsequent developments in the law
have undercut the rationale for Shiffra. And because Shiffra is
in tension with our victims' rights laws and the Wisconsin
Constitution's protections for crime victims, we further hold
that it is detrimental to coherence in the law.
IV
¶47 In sum, we hold that Shiffra must be overturned. It
is unsound in principle because it rests on a misinterpretation
of the United States Supreme Court's decision in Ritchie and
harms the therapist-patient relationship. It is unworkable in
practice because it is inherently speculative and cannot be
applied consistently. And it has been undermined by
developments in the law regarding sexual assault and domestic
violence and by the adoption of new statutory and constitutional
32
No. 2019AP664-CR
provisions protecting the rights of victims, and is therefore
detrimental to coherence in the law. See, e.g., Wis. Const.
art. I, § 9m; Wis. Stat. § 950.04. These three reasons each
provide a special justification for departing from stare
decisis. We therefore reverse the court of appeals' decision
and remand to the circuit court with instructions to deny
Johnson's motion for in camera review of T.A.J.'s privately
held, privileged mental health treatment records.21
By the Court.—The decision of the court of appeals is
reversed, and the cause is remanded to the circuit court for
further proceedings consistent with this opinion.
Because we hold that Shiffra must be overturned, we need
21
not address the parties' other arguments about whether our
constitution or victims' rights statutes grant crime victims
standing in the context of a criminal case.
33
No. 2019AP664-CR.rgb
¶48 REBECCA GRASSL BRADLEY, J. (concurring).
We cannot mistake "the law" for "the opinion of the
judge" because "the judge may mistake the law."
Johnson v. Wis. Elections Comm'n (Johnson II), 2022 WI 14, ¶259,
400 Wis. 2d 626, 971 N.W.2d 402 (Rebecca Grassl Bradley, J.,
dissenting) (quoting Introduction, William Blackstone,
Commentaries *71), summarily rev'd sub. nom., Wis. Legislature
v. Wis. Elections Comm'n, 595 U.S. __, 142 S. Ct. 1245 (per
curiam).
¶49 This court has a duty to overrule precedential
decisions that are objectively erroneous. Friends of Frame
Park, U.A. v. City of Waukesha, 2022 WI 57, ¶42, 403 Wis. 2d 1,
976 N.W.2d 263 (Rebecca Grassl Bradley, J., concurring) (citing
Wenke v. Gehl Co., 2004 WI 103, ¶21, 274 Wis. 2d 220, 682
N.W.2d 405). "To err is human, and judges are nothing if not
human[.]" Bartlett v. Evers, 2020 WI 68, ¶202, 393 Wis. 2d 172,
945 N.W.2d 685 (Kelly, J., concurring/dissenting). "No man's
error becomes his own Law; nor obliges him to persist in it.
Neither (for the same reason) becomes it a Law to other Judges."
Cobb v. King, 2022 WI 59, ¶50, 403 Wis. 2d 198, 976 N.W.2d 410(Rebecca Grassl Bradley, J., dissenting) (quoting Thomas Hobbes,
Leviathan 192 (Richard Tuck ed., Cambridge Univ. Press 1991)
(1651)). "[B]y obstinately refusing to admit errors" this court
does "more damage to the rule of law . . . than by overturning
an erroneous decision." State v. Roberson, 2019 WI 102, ¶49,
389 Wis. 2d 190, 935 N.W.2d 813 (quoting Johnson Controls, Inc.
v. Emp'rs Ins. of Wausau, 2003 WI 108, ¶100, 264 Wis. 2d 60, 665
N.W.2d 257).
1
No. 2019AP664-CR.rgb
¶50 In this case, the State argued the court of appeals in
State v. Shiffra reached an objectively wrong holding based on
unsound reasoning. 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App.
1993), modified, State v. Green, 2002 WI 68, 253 Wis. 2d 356,
646 N.W.2d 298. This court ordered further briefing addressing
the issue.1 The court of appeals in Shiffra misapplied binding
precedent regarding the constitutional right to due process,
specifically, Pennsylvania v. Ritchie, 480 U.S. 39 (1987). This
error alone provides sufficient reason to overrule Shiffra.
¶51 Although this court correctly overrules Shiffra, I do
not join the majority opinion in full. The majority
misinterprets Shiffra, and, while it acknowledges the separation
of powers established under the Wisconsin Constitution, the
majority does not respect it.
The dissent claims this court should not overrule a case
1
unless the argument for doing so is clearly developed in the
opening briefs, faulting this court for ordering further
briefing on whether to overrule Shiffra. Dissent, ¶¶113–14.
The dissenting author, however, has voted to overrule precedent
she does not like even when no party asked this court to do so.
Compare Tavern League of Wis., Inc. v. Palm, 2021 WI 33, ¶72,
396 Wis. 2d 434, 957 N.W.2d 261 (Ann Walsh Bradley, J.,
dissenting) (claiming one of this court's decisions should be
overruled), with id., ¶38 (Hagedorn, J., concurring) (explaining
this court was not "asked to reexamine" the decision and that
"doing so" was unnecessary "to decide this case").
Additionally, the dissent faults this court for not
addressing the standing issue. E.g., Dissent, ¶¶13–14. The
dissent maintains this court's decision to leave that issue
unaddressed somehow demonstrates outcome-oriented reasoning.
Id. Curiously, the dissent never addresses the standing issue
either——and it would seemingly need to reach the issue, unlike
the majority.
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¶52 The court of appeals in Shiffra grounded its decision
in the constitutional right to due process, but the majority
claims the court of appeals also adopted a non-constitutional
"alternative rationale": "[p]ublic policy[.]" Majority op. ¶40
n.15 (quoting Shiffra, 175 Wis. 2d at 611–12) (first
modification in the original). This interpretation of Shiffra
is tenuous, but the majority claims it necessitates a lengthy
discussion of public policy problems it perceives the court of
appeals created. See id., ¶¶24, 40 n.15. For example, the
majority reasons that "Shiffra's alternative, public-policy
based rationale is unsound in principle because it undermines
the therapist-patient relationship." Id., ¶24 (citing Shiffra,
175 Wis. 2d at 611–12). If the majority's interpretation is
correct, the alternative rationale in Shiffra is unsound
primarily because the court of appeals lacks lawmaking power——
not because the law the court of appeals created represents poor
public policy. See In re Amending Wis. Stats. §§ 48.299 &
938.299 Regulating the Use of Restraints on Child. in Juv. Ct.
(Juv. Ct.), 2022 WI 26, ¶43 (Rebecca Grassl Bradley, J.,
dissenting). If a statutory privilege conflicts with the
Constitution, the Constitution always prevails, but a court has
no power to rewrite a statute it dislikes. The majority
acknowledges that "courts of course lack[] the power to rewrite
statutes in the name of public policy." Majority op., ¶30.
Assuming any discussion of this supposed alternative rationale
is necessary, it should end with this acknowledgment.
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¶53 Even if this court endorsed Shiffra as the majority
supposes, it followed the now-defunct rule that court of appeals
decisions bind this court in addition to lower courts. This
court discarded that misguided rule last term. Compare
Manitowoc County v. Samuel J.H., 2013 WI 68, ¶5 n.2, 349
Wis. 2d 202, 833 N.W.2d 109 ("[T]he doctrine of stare decisis
applies to published court of appeals opinions and requires this
court 'to follow court of appeals precedent unless a compelling
reason exists for overruling it.'" (quoting Wenke, 274
Wis. 2d 220, ¶21)), with State v. Yakich, 2022 WI 8, ¶31, 400
Wis. 2d 549, 970 N.W.2d 12 ("[W]e are not bound by court of
appeals decisions. As the state's highest court, we interpret
legal questions independently." (citing State v. Lira, 2021
WI 81, ¶45, 399 Wis. 2d 419, 966 N.W.2d 605)). This development
undermines the rationale of this court's decisions purportedly
approving Shiffra but with no analysis of its reasoning. See
Roberson, 389 Wis. 2d 190, ¶50 (explaining "[c]hanges or
developments in the law" may "undermine[] the rationale behind a
decision," providing a reason to overrule the decision (citing
Bartholomew v. Wis. Patients Comp. Fund & Compcare Health Servs.
Ins., 2006 WI 91, ¶33, 293 Wis. 2d 38, 717 N.W.2d 216)).
Because I disagree with some of the reasons the majority
advances for overturning Shiffra, I join only part of the
majority opinion and respectfully concur.
I. BECAUSE THE COURT OF APPEALS WAS OBJECTIVELY WRONG IN
SHIFFRA, THIS COURT MUST OVERRULE IT.
¶54 The objective error in Shiffra stems from a
fundamental misunderstanding of the Due Process Clause of the
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Fourteenth Amendment to the United States Constitution;
specifically, the court of appeals in Shiffra did not reconcile
its reasoning with the state action doctrine. The clause
embodying that doctrine provides: "[N]or shall any State
deprive any person of life, liberty, or property, without due
process of law[.]" U.S. Const. amend. XIV, § 1 (emphasis
added). The United States Supreme Court interpreted the text of
that clause as follows: "[T]he principle has become firmly
embedded in our constitutional law that the action
inhibited . . . is only such action as may fairly be said to be
that of the States. That Amendment erects no shield against
merely private conduct, however discriminatory or wrongful."
Shelley v. Kraemer, 334 U.S. 1, 13 (1948) (citing Civil Rights
Cases, 109 U.S. 3 (1883)). This court is bound to respect this
principle because of the Supremacy Clause of the United States
Constitution, which provides that "[t]his
Constitution . . . shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby[.]" U.S. Const.
art. VI, § 2. See generally Johnson v. Wis. Elections Comm'n,
2021 WI 87, ¶21, 399 Wis. 2d 623, 967 N.W.2d 469 (citing State
v. Jennings, 2002 WI 44, ¶18, 252 Wis. 2d 228, 647 N.W.2d 142).
¶55 In Brady v. Maryland, the United States Supreme Court
conceptualized a prosecutor's withholding of exculpatory
evidence as state action. 373 U.S. 83, 87–88 (1963). As the
Court explained, "prosecution that withholds
evidence . . . which, if made available, would tend to
exculpate . . . [the defendant] or reduce the penalty helps
5
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shape a trial that bears heavily on the defendant. That casts
the prosecutor in the role of an architect of a proceeding that
does not comport with standards of justice[.]" Id.¶56 The Court later clarified that the rule articulated in
Brady is narrow: "There is no general constitutional right to
discovery in a criminal case, and Brady did not create one[.]"
Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Brady is
grounded instead in a prosecutor's "special role[.]" Strickler
v. Greene, 527 U.S. 263, 281 (1999). A prosecutor is "the
representative not of an ordinary party to a controversy, but of
a sovereign[.]" Id. (quoting Berger v. United States, 295
U.S. 78, 88 (1935)). Hence, Brady is consistent with both the
state action doctrine and the longstanding rule that a criminal
defendant has no general constitutional right to discovery.
¶57 In Ritchie, the United States Supreme Court extended
Brady in a limited way. A criminal defendant sought access to
confidential——but not privileged——records in the possession of a
state agency with investigative duties but not in the
prosecutor's possession. 480 U.S. at 42–44. The Court began
its analysis by noting, "[i]t is well settled that the
government has the obligation to turn over evidence in its
possession that is both favorable to the accused and material to
guilt or punishment." Id. at 57 (citing United States v. Agurs,
427 U.S. 97 (1976); Brady, 373 U.S. at 87) (emphasis added). It
held that a court should review the records at a closed hearing
to determine whether the law compels the State to share any of
them with the accused. Id. at 61. The Court reiterated,
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No. 2019AP664-CR.rgb
however, the lack of a general constitutional right to
discovery.2 Id. at 59–60 (quoting Weatherford, 429 U.S. at 559).
¶58 The Court in Ritchie never suggested the due process
right it articulated covered records held by non-state actors.
As one commentator has explained:
Ritchie and other cases relying on Brady have no
relevance to the issue of subpoenas to third parties.
"Brady imposes a constitutional duty on prosecutors to
turn over exculpatory evidence . . . ." The rationale
for such a rule is that the prosecutor, after
initiating criminal charges, should not be the
"architect" of an unfair proceeding. Plainly, crime
victims (and third parties holding records about crime
victims) are not state actors. They are not
architects of the criminal proceedings and therefore
are not subject to these constitutional restrictions
on state action. . . .
[A] defendant has no constitutional right to
discovery[.]
Paul G. Cassell, Treating Crime Victims Fairly: Integrating
Victims into the Federal Rules of Criminal Procedure, 2007 Utah
L. Rev. 861, 914–15 (quoting Bolduc v. United States, 402
F.3d 50, 56 n.6 (1st Cir. 2005)) (first ellipsis in the
original). As the court concludes in this case, the court of
appeals in Shiffra erred by "equat[ing] the government's
interest . . . with a victim's interest[.]" Majority op., ¶45.
2The dissent acknowledges "[t]here is no constitutional
right to an in camera review" but claims the question before
this court is whether "there is a constitutional right to
present a complete defense[.]" Dissent, ¶140. The dissent does
not cite any source to support its assertion, but more
importantly, the assertion is inconsistent with the admonition
in Brady and numerous other cases that a defendant is not
entitled to discovery as a matter of constitutional right.
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¶59 No decision of the United States Supreme Court——or any
federal circuit——has suggested the existence of such a right.
As the Seventh Circuit has explained, if the government does not
possess the records, "there can be no 'state action' and
consequently, no violation of [the] Fourteenth Amendment."
United States v. Hach, 162 F.3d 937, 947 (7th Cir. 1998). It
went on to hold that "a failure to show that the records a
defendant seeks are in the government's possession is fatal
to . . . [a Ritchie claim]." Id. (citing United States v.
Skorniak, 59 F.3d 750, 755 (8th Cir. 1995)). Other circuits are
in accord. For example, the Eighth Circuit similarly held,
"While Brady requires the Government to tender to the defense
all exculpatory evidence in its possession, it establishes no
obligation on the Government to seek out such evidence." United
States v. Riley, 657 F.2d 1377, 1386 (8th Cir. 1981) (quoting
United States v. Walker, 559 F.2d 365, 373 (5th Cir. 1977)).
¶60 Neither Shiffra nor decisions relying on Shiffra
explain how a private party's withholding of records could
possibly be characterized as state action. Cassell, Treating
Crime Victims Fairly, at 915 & n.319. As a lead opinion of this
court explained in 2016:
To say the court of appeals took some liberties
interpreting and applying Ritchie would be an
understatement. . . . [T]he court of appeals swept
into Ritchie's reach privileged records held by
entities completely removed from the investigative
criminal process. Ritchie——a case concerning
confidential records (subject to numerous exceptions)
held by the very agency charged with investigating the
offense and therefore soundly rooted in Brady——never
should have been stretched to cover privileged records
8
No. 2019AP664-CR.rgb
held by agencies far removed from investigative and
prosecutorial functions.
State v. Lynch, 2016 WI 66, ¶36, 371 Wis. 2d 1, 885 N.W.2d 89(lead op.). The court of appeals did "not offer a principled
reason for extending Ritchie to private records[.]" Cassell,
Treating Crime Victims Fairly, at 915 n.319.
¶61 The reasoning in Shiffra is demonstrably "unsound in
principle" because it displays "an erroneous understanding" of
binding precedent. See Roberson, 389 Wis. 2d 190, ¶51 (quoting
Tetra Tech EC, Inc. v. Dep't of Rev., 2018 WI 75, ¶83, 382
Wis. 2d 496, 914 N.W.2d 21 (lead op.)). The United States
Constitution does not require the pseudo-statutory scheme the
court of appeals created, and the United States Supreme Court
never suggested otherwise. "To avoid the injustice of
subjecting parties in perpetuity to erroneous holdings, '[t]he
primary and most important factor to weigh in considering
whether to overrule an earlier decision is its correctness.'"
Friends of Frame Park, 403 Wis. 2d 626, ¶65 (quoting Johnson II,
400 Wis. 2d 626, ¶259) (modification in the original). Because
Shiffra was objectively wrong as a matter of law, this court
correctly overrules it.
II. THE MAJORITY AND THE DISSENT MISREAD SHIFFRA AND
MISUNDERSTAND THE SEPARATION OF POWERS BY INVOKING PUBLIC
POLICY.
¶62 The majority discusses public policy considerations at
length even after holding that due process does not require the
procedure created in Shiffra. The majority acknowledges these
discussions are relevant only for rebutting the supposed
"alternative" basis for the reasoning in Shiffra: "[p]ublic
9
No. 2019AP664-CR.rgb
policy[.]" Majority op., ¶40 n.15 (quoting Shiffra, 175
Wis. 2d at 611–12) (first modification in the original).
Specifically, the majority maintains the court of appeals in
Shiffra grounded its holding not only in the United States
Constitution but also in "'[p]ublic policy' and balancing the
competing interests of privilege holders and criminal
defendants[.]" Id. (quoting Shiffra, 175 Wis. 2d at 611–12)
(first modification in the original).
¶63 As a preliminary matter, the existence of this
supposed alternative rationale is based on a suspect reading of
Shiffra. The phrase "public policy" appears once in Shiffra,
toward the end of the opinion. The court of appeals stated:
"Public policy and the history of our judicial system require
that Wisconsin's courts embrace Ritchie in the manner prescribed
by . . . [the court of appeals] in . . . [two previous cases]."
Shiffra, 175 Wis. 2d at 612. The court seemed to be suggesting
that the creation of what it considered to be sound public
policy justified reading Ritchie in a particular way. The court
did not, however, employ public policy as an independent basis
for its holding.
¶64 Even if the majority's interpretation plausibly
reflects the reasoning of the court of appeals in Shiffra, the
majority should not incorporate public policy considerations
into its analysis because the judiciary lacks general lawmaking
power. "'The legislative power' is 'vested in a senate and
assembly' under Article IV, Section 1 of the Wisconsin
Constitution." Juv. Ct., 2022 WI 26, ¶43. "This vesting is a
10
No. 2019AP664-CR.rgb
constitutional command, stated in 'unambiguous' and
'unqualified' language." Id. (quoting Bartlett, 393
Wis. 2d 172, ¶175). "The legislative power includes the
authority to: (1) 'declare whether or not there shall be a
law'; (2) 'determine the general purpose or policy to be
achieved by the law'; and (3) 'fix the limits within which the
law shall operate.'" Id., ¶44 (quoting Koschkee v. Taylor, 2019
WI 76, ¶11, 387 Wis. 2d 552, 929 N.W.2d 600). Beyond legal
pleading, practice, and procedure,3 the judiciary lacks authority
to exercise lawmaking power because the people vested that
function in a different branch. Id., ¶¶46–48. Shiffra's rule
impermissibly modified the legislature's work. As the majority
notes, "[t]here is no . . . exception to the [statutory]
privilege . . . for court-ordered in camera review of a victim's
privately-held, privileged health records upon a criminal
defendant's motion"——the court of appeals simply "created" one.
Majority op., ¶¶8–9.
¶65 Perhaps the purported public policy basis for the
holding in Shiffra is unsound on several grounds, but the court
of appeals had no authority to ponder policy considerations——nor
does this court. Shiffra lacks any legitimacy because the court
3 Wisconsin Stat. § 751.12(1) (2021–22) provides in relevant
part:
The state supreme court shall, by rules promulgated by
it from time to time, regulate pleading, practice, and
procedure in judicial proceedings in all courts, for
the purposes of simplifying the same and of promoting
the speedy determination of litigation upon its
merits. The rules shall not abridge, enlarge, or
modify the substantive rights of any litigant.
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of appeals overrode a statute. The majority acknowledges this
obvious point, but nonetheless wades into a substantive public
policy discussion, citing social science articles regarding the
purported rate of false claims of sexual assault in an effort to
prove Shiffra is outdated. Id., ¶¶30, 43 n.17. The judiciary
is not well suited to sort through the conflicting social
science literature cited by the majority, nor does it have any
constitutional authority to determine the best public policy for
the state. "[T]he judiciary is not in a good position to judge
social values or social science. When social science is
disputed, the institutional parameters of the judiciary are
amplified. It is the legislature that is structured to assess
the merits of competing policies and ever-changing social
science assertions." Roberson, 389 Wis. 2d 190, ¶38. The
majority also does not explain how social science research could
possibly inform the analysis of whether the court of appeals
properly interpreted the Due Process Clause in Shiffra.
"[S]ocial science has no role to play in constitutional
analysis[.]" Id., ¶86 (Rebecca Grassl Bradley, J., concurring).
¶66 The dissent would preserve Shiffra at the expense of
the separation of powers that is central to the Wisconsin
Constitution. The dissent and the majority agree that "nothing
in the Constitution prohibits the adoption of the Shiffra
procedure." Dissent, ¶136 (citing majority op., ¶30 n.14).
True, but the constitution assigns that choice to another branch
of government. As the majority acknowledges, the legislature
could adopt a Shiffra-like procedure by statute, and other state
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legislatures have done so. Majority op., ¶30 n.14 (citing Iowa
Code § 622.10(4)). The issue is not whether a provision of the
United States Constitution conflicts with the procedure created
by the court of appeals; we examine only whether the
Constitution requires that procedure. No provision does;
therefore, the proper "balance" between the "rights of both
criminal defendants and victims" is for the legislature to
decide. See dissent, ¶104.
¶67 The dissent does not recognize the threat Shiffra
poses to the rule of law, noting it is a "decades-old procedure,
relied upon by courts, litigants, and victims alike. And what
has the majority left in its place? Nothing." Id., ¶108. On
the contrary, the majority has restored a statutory privilege
unaltered by the judicial pen. The dissent also forgets that
"[u]nlike a fine wine, precedent does not necessarily get better
with age." Johnson II, 400 Wis. 2d 626, ¶253 (citing Montejo v.
Louisiana, 556 U.S. 778, 129 S. Ct. 2079, 2093 (2009) (Alito,
J., concurring)). Judges who rewrite a statute erode democratic
rule. Reversing such judicial overreach restores it.
¶68 The dissent also invokes a rather vague reliance
interest supposedly created by Shiffra. The United States
Supreme Court explained less than a year ago that "[t]raditional
reliance interests arise 'where advance planning of great
precision is most obviously a necessity.'" Dobbs v. Jackson
Women's Health Org., 597 U.S. __, 142 S. Ct. 2228, 2276 (2022)
(quoted source omitted). Generally, such interests arise from
cases deciding rules of "property and contract" law. Id.13
No. 2019AP664-CR.rgb
(quoted source omitted). The Court has been skeptical of
"intangible" interests. Id. at 2277. What specific decisions
did people make in reliance on Shiffra? Did criminals commit
crimes thinking they could later find evidence to attack their
victims' credibility? Did victims decide not to seek mental
health counseling? Neither supports perpetuating the court of
appeals' objective error in Shiffra, but what other interests
the dissent has in mind is unclear.
III. SUBSEQUENT DEVELOPMENTS IN THE LAW UNDERMINE DECISIONS OF
THIS COURT SUPPOSEDLY ENDORSING SHIFFRA.
¶69 While this court has sometimes demanded a special
justification for overruling its prior decisions, it does not
require a heightened reason to overrule court of appeals
precedent. Lira, 399 Wis. 2d 419, ¶45. Just last term, this
court noted its "repeated willingness to interpret and apply the
law correctly, irrespective of a court of appeals decision that
came to a different conclusion." Id. (collecting cases). While
the court of appeals primarily serves to correct errors below,
"[t]he people of Wisconsin established this court as the supreme
judicial tribunal and in fulfilling our constitutional duty to
declare the law in this state, we may overturn any incorrect
court of appeals opinion with no consideration of the stare
decisis doctrine." Friends of Frame Park, 403 Wis. 2d 1, ¶68.
Accordingly, "we are not bound by court of appeals decisions.
As the state's highest court, we interpret legal questions
independently." Yakich, 400 Wis. 2d 549, ¶31 (citing Lira, 399
Wis. 2d 419, ¶45).
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¶70 Until last term, this court had recognized a peculiar
form of stare decisis, which required it to treat court of
appeals precedent as its own. See, e.g., Samuel J.H., 349
Wis. 2d 202, ¶5 n.2 (quoting Wenke, 274 Wis. 2d 220, ¶21). This
now-defunct rule caused many problems, as this case highlights.
¶71 In State v. Green, this court erroneously treated
Shiffra as binding. 253 Wis. 2d 356. In Green, the State
argued this court should overrule Shiffra. This court relegated
its analysis and ultimate rejection of that argument to a single
footnote, declaring:
The State contends that the holding
in . . . Shiffra . . . was in error because it relied
on . . . Ritchie . . . . The State argues that
Ritchie was distinguishable and therefore inapplicable
because it involved a situation, unlike here, where
the records were in the government's possession. The
Shiffra court, however, specifically rejected this
argument, concluding that it was bound by Wisconsin
precedent, which clearly made Ritchie applicable in
cases where the information sought by the defense is
not in the possession of the state. Shiffra, 175
Wis. 2d at 606–07, 499 N.W.2d 719 (citing State v.
S.H., 159 Wis. 2d 730, 736, 465 N.W.2d 238(Ct.App.1990), and In re K.K.C., 143 Wis. 2d 508, 511,
422 N.W.2d 142 (Ct.App.1988)). This court recognized
the validity of Shiffra in State v. Solberg, 211
Wis. 2d 372, 386–87, 564 N.W.2d 775 (1997), and in
State v. Rizzo, 2002 WI 20, ¶53, 250 Wis. 2d 407, 640
N.W.2d 93. We will not depart from this precedent.
Id., ¶21 n.4 (emphasis added).
¶72 Although this court in Green claimed it had
"recognized the validity of Shiffra" in Solberg and Rizzo, it
did little more than cite Shiffra in those cases. Neither case,
as the majority notes, "examined the basis for the court of
appeals' holding in Shiffra, . . . instead . . . [taking] its
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No. 2019AP664-CR.rgb
framework as a given." Majority op., ¶21. For example,
paragraph 53 of Rizzo, which Green indicates "recognized the
validity of Shiffra" states, in full:
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 case 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, 499 N.W.2d 719.
Rizzo, 250 Wis. 2d 407, ¶53. In Rizzo, this court did not
endorse Shiffra but rather rejected an argument that would have
left victims without protection the law provides——in contrast
with Shiffra, which at least retained some statutory protection.
The majority correctly notes that "Green, Solberg, and Rizzo
never did what the State and T.A.J. ask us to do in this case:
analyze whether Shiffra was wrongly decided." Majority op., ¶21
(citations omitted). A few Shiffra citations in this court's
decisions are insufficient to uphold Shiffra.
¶73 This court's prior treatment of Shiffra relinquished
this court's law-development function to the court of appeals,
in violation of the supreme law, which makes this court
"supreme." The people of Wisconsin ratified a constitutional
amendment in the 1970s creating the court of appeals with the
16
No. 2019AP664-CR.rgb
understanding that its establishment would allow this court to
improve the quality of its legal analysis. Friends of Frame
Park, 403 Wis. 2d 1, ¶59 ("The court of appeals was created in
1978 by constitutional amendment so that this court could focus
on its law-developing function." (citing Matthew E. Garbys,
Comment, A Shift in the Bottleneck: The Appellate Caseload
Problem Twenty Years After the Creation of the Wisconsin Court
of Appeals, 1998 Wis. L. Rev. 1547, 1548). A committee noted:
In the rush to cope with its increasing calendar, the
Supreme Court must invariably sacrifice quality for
quantity. Increasing appellate backlogs necessarily
produce a dilution in craftsmanship. . . . The
Supreme Court is cast in the role of a "case-deciding
court"——one which merely reacts to individual cases
and thus slights its law-stating function.
. . . .
The size of this caseload can only have a detrimental
effect on the quality of the Supreme Court's work.
Cases involving major questions of substantive law may
be decided on the basis of superficial issues.
. . . .
The function of the Court of Appeals should be to
provide a reasonably available appeal to correct trial
court errors and to do justice expeditiously among the
litigants. The articulation of broad legal principles
and the formulation of a coherent body of
jurisprudence should remain primarily the function of
the Supreme Court. The Court of Appeals should follow
the procedural and substantive law mandated through
prior Supreme Court decisions, when such decisions are
applicable.
Citizens Study Comm. on Jud. Org., Report to Governor Patrick J.
Lucey 78, 80 (1973) (on file at the David T. Prosser Jr. State
Law Library). With regard to Shiffra, this court has
"slight[ed]" its "law-stating function," thereby perpetrating
17
No. 2019AP664-CR.rgb
"the precise problem the people of this state sought to prevent
by creating the court of appeals." Friends of Frame Park, 403
Wis. 2d 1, ¶60 (quoting Citizens Study Comm. on Jud. Org.,
Report to Governor Patrick J. Lucey, at 78). The court of
appeals itself has recognized that this court "has been
designated by the constitution and the legislature as a law-
declaring court. . . . While the court of appeals also serves a
law-declaring function, such pronouncements should not occur in
cases of great moment." State v. Grawien, 123 Wis. 2d 428, 432,
367 N.W.2d 816 (Ct. App. 1985) (citation omitted).
¶74 The court of appeals in Shiffra never addressed
Ritchie directly, instead concluding court of appeals precedent,
S.H. and K.K.C., already addressed Ritchie's reach. Neither
S.H. nor K.K.C., however, supplies any substantive analysis of
Ritchie. In S.H., the court held that any argument grounded in
Ritchie had been forfeited: "S.H. . . . fails to
mention . . . his Ritchie discovery motion . . . in his main
brief. Issues not briefed are deemed abandoned. . . . [W]e
will not address the [circuit] court's refusal to conduct an in
camera review pursuant to Ritchie." 159 Wis. 2d at 738(citation omitted). The court barely discussed Ritchie, and as
the State now argues, "the only purpose of the S.H.'s court
mention of Ritchie was to explain that . . . [the defendant] had
abandoned any constitutional argument on appeal." In K.K.C.,
the court limited its analysis of Ritchie to the following:
[The defendant] contends that if the trial judge in
his criminal cases does not review the agency's files,
he will be denied his constitutional rights to
confrontation, compulsory process and due process.
18
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Pennsylvania v. Ritchie, 480 U.S. 39 . . . (1987).
Ritchie holds that a criminal defendant is entitled to
an in camera review by the trial court of confidential
records if those records are material to the
defendant's defense. Id. at ––––, 107 S. Ct. at
1003 . . . .
DeLeu has not moved the trial court in his criminal
cases to make an in camera review of the agency
records. If he does so, Ritchie, supra, establishes
that he is entitled to such a review by the trial
court, provided he makes a preliminary showing that
the files contain evidence material to his defense.
143 Wis. 2d at 511. As noted in the majority opinion, K.K.C.
dealt with records possessed by a government agency, not
privately held records. See majority op., ¶15. Not only had
this court never independently analyzed Ritchie's reach, no
Wisconsin court had done so——until this case. See generally
Lynch, 371 Wis. 2d 1, ¶¶21–39 (explaining the problematic
origins of Shiffra and this court's problematic deference to
it).
¶75 The treatment of Ritchie by Wisconsin courts
demonstrates the importance of careful reconsideration of prior
judicial error:
[T]he potential for mistakes is constantly at hand,
because it is tempting for a creative court to reach a
decision "by extorting from precedents something which
they do not contain." Robert Rantoul, Oration in
Scituate (July 4, 1836) in Antonin Scalia, A Matter of
Interpretation 39 (1991). Once embarked on this path,
it is too easy for the court to "extend [its]
precedents, which were themselves the extensions of
others, till, by this accommodating principle, a whole
system of law is built up without the authority or
interference of the [people]." Id.Bartlett, 393 Wis. 2d 172, ¶202 (modifications in the original).
Brady created a narrow right, which Ritchie then extended. Then
19
No. 2019AP664-CR.rgb
Shiffra extended Ritchie, and so on in what has been dubbed "a
series of wrong turns[.]" Katharine Adler, Comment, In the Name
of "Justice": Shiffra-Green and Their Unintended Harms, 106
Marq. L. Rev. 243, 257 (2022). At no point in this series of
extensions did this court ever step in and decide the meaning of
the law. See id. This court now does its duty.
IV. CONCLUSION
¶76 The judiciary takes an oath to uphold the United
States Constitution, not precedent. Nothing compels this court
to reflexively follow the decisions of a lower court. See
Bartlett, 393 Wis. 2d 172, ¶206. The Wisconsin Constitution
prohibits such deference. Our oath obligates us to overturn
"judge-made constitutional law," when "divorced" from the United
States Constitution. Lino A. Graglia, Constitutional Law
Without the Constitution: The Supreme Court's Remaking of
America, in "A Country I Do Not Recognize": The Legal Assault
on American Values 1–2 (Robert H. Bork ed., 2005). I
respectfully concur with the majority's decision to overturn
Shiffra because the court of appeals in that case misinterpreted
federal constitutional law. The majority should have rested its
analysis solely on that ground; developments in social science
have no role to play in discerning the Constitution's meaning.
20
No. 2019AP664-CR.jjk
¶77 JILL J. KAROFSKY, J. (concurring). "For most sexual
assault victims, privacy is like oxygen; it is a pervasive,
consistent need at every step of recovery. Within the context
of the legal system, if a victim is without privacy, all other
remedies are moot." Ilene Seidman & Susan Vickers, The Second
Wave: An Agenda for the Next Thirty Years of Rape Law Reform, 38
Suffolk U.L. Rev. 467, 473 (2005).
¶78 I agree with the majority opinion and join it in full.
The majority opinion handily explains how Shiffra was unsound in
principle, unworkable in practice, and detrimental to the
coherence of the law. I write this concurrence to illustrate
the practical reality of how Shiffra was unworkable and to
address the dissenting opinion's contention that the Shiffra
framework provided a "reasonable balance" between a victim's
right to privacy and a defendant's right to present a complete
defense. See Dissent, ¶124. The on-the-ground reality of the
Shiffra framework, which I will illustrate through three case
examples, reveals anything but a reasonable balance.
¶79 I begin by taking a step back and acknowledging the
strength, courage, and resiliency necessary for a sexual assault
victim to report in the first place. Sexual assault is
pervasive in our society. The Federal Bureau of Investigation
reports that a forcible rape occurs in the United States every
3.8 minutes. Alexa Sardina & Alissa R. Ackerman, Restorative
Justice in Cases of Sexual Harm, 25 CUNY L. Rev. 1, 3 (2022).
Additionally, it is estimated that almost 20 percent of women
and eight percent of men are sexually abused before the age of
1
No. 2019AP664-CR.jjk
18. Id. Despite these astronomical numbers, only approximately
36 percent of sexual assaults and 34 percent of attempted sexual
assaults are reported to police. Id. at 4. Furthermore,
according to data from the U.S. Department of Justice, as much
as 86 percent of child sexual abuse may go unreported
altogether. Dean G. Kilpatrick et al., U.S. Dep't Just., Youth
Victimization: Prevalence and Implications, 6 (Apr. 2003). The
reasons victims are reluctant to report are numerous and include
shame, fear of not being believed, and fear of retribution.
Alexa Sardina & Alissa R. Ackerman, Restorative Justice in Cases
of Sexual Harm, 25 CUNY L. Rev. 1, 6 (2022).
¶80 Despite these barriers, some sexual assault victims
still choose to report and engage with the criminal justice
system. However, in the past thirty years, because of Shiffra,
countless sexual assault victims who reported their
victimization have been on the horns of a dilemma, forced to
choose between either disclosing their mental health records or
not testifying in the trials of their perpetrators. Neither
option was tenable, leaving victims with no choice but to have
their suffering compounded by the system meant to administer
justice.
¶81 Under Shiffra, once a court ordered a victim to
disclose her mental health records, a victim's first purported
option was to hand over those records for an in camera
inspection which could then lead to disclosure to the defendant.
This was hardly a workable option. Disclosing a victim's most
personal beliefs, thoughts, and feelings to a judge, and
2
No. 2019AP664-CR.jjk
potentially to the person who has caused her unimaginable harm,
destroys the sanctity of the relationship between the victim and
her therapist. "The psychotherapist-patient privilege is
'rooted in the imperative need for confidence and trust.'"
Jaffee v. Redmond, 518 U.S. 1, 10 (1996) (quoting Trammel v.
United States, 445 U.S. 40, 51 (1980)). That is because
"[e]ffective psychotherapy . . . depends on an atmosphere of
confidence and trust in which the patient is willing to make a
frank and complete disclosure of facts, emotions, memories, and
fears," often about sensitive issues. Id. Even "the mere
possibility of disclosure may impede development of the
confidential relationship necessary for successful treatment."
Id. Given that the disclosure of mental health records causes
incredible and irreparable harm to victims by rending the veil
of privacy required for therapeutic healing, it is not
surprising that many victims chose the second purported option
and refused disclosure.
¶82 But the option to refuse disclosure was equally
unworkable. The court of appeals in Shiffra affirmed an
astonishing remedy when it decided that a victim who failed to
turn over mental health records should be sanctioned and her
trial testimony suppressed. The impact of this remedy has been
undeniably negative for both victims and the State because in
the vast majority of Shiffra cases, a victim's testimony was the
only evidence against the accused. Consequently, when a victim
was barred from testifying, the perpetrator was often not held
to account.
3
No. 2019AP664-CR.jjk
¶83 I turn now to three cases——Shiffra, S.C. Johnson, and
Lynch——where victims were caught on the horns of the Shiffra
dilemma. These cases reveal how defendants have filed
incredibly broad requests for victim mental health records that
were fishing expeditions at best and deliberate attempts to
harass and intimidate victims at worst. These cases further
reveal how judges have granted these broad requests, ordering
victims to release mental health records despite the defendant's
failure to point to any evidence which would bring the victim's
credibility into question. Judges have ordered victims to turn
over years, even decades, of therapy records in order to look
for the possible absence of communication to the therapist about
the abuse——which may not have been relevant evidence to begin
with. See State v. Hineman, 2023 WI 1, ¶65, 405 Wis. 2d 233,
983 N.W.2d 652 (Karofsky, J., concurring) ("The truth——as
opposed to the myth——is that when it comes to child sexual
assault cases, disclosure is the departure from the norm.").
Finally, these cases exemplify how the Shiffra remedy led to
catastrophic results as charge after charge was dropped or
amended to far less serious charges, and justice was all but
abandoned.
I. STATE V. SHIFFRA
¶84 State v. Shiffra itself demonstrates the sheer breadth
of privileged mental health information that some victims were
ordered to turn over and the consequences that ensued when
victims did not comply with the order to disclose their records.
It also demonstrates how requests can be both highly speculative
4
No. 2019AP664-CR.jjk
and cumulative of other evidence already available to the
defendant. Shiffra was charged with second-degree sexual
assault for an incident involving a victim I will refer to as
P.P. See State v. Shiffra, 175 Wis. 2d 600, 602, 499 N.W.2d 719(Ct. App. 1993). Shiffra was accused of sexually assaulting
P.P., leaving her with bruises on her breasts and left elbow and
a "hickey" on her left breast——bruises that were documented by
the police when she reported the incident that same evening.
Id. The day before the jury trial was to start, Shiffra filed a
motion seeking an adjournment because the State had turned over
evidence that indicated that P.P. had "a history of psychiatric
problems which may affect her ability to perceive and relate
truthful information." Id. at 603.
¶85 After the circuit court granted the adjournment,
Shiffra filed a motion seeking an order requiring P.P. "to
reveal to the defendant her psychiatric history, psychiatric
records and to execute an authorization to release medical
information from any doctors, hospitals or counselors seen by
[P.P.] with respect to her mental condition." Id. at 603. More
specifically, the defense sought evidence that P.P. "may suffer
from some type of psychiatric disorder which causes her an
inability to truthfully relate facts as she perceives
them . . . . And that she may suffer from an inability or some
disorder which causes her to have flashbacks to previous
instances in her life and then they become sexual assaults of
her because of her disorders." Id. The circuit court found
that "there has been a sufficient basis shown . . . for the
5
No. 2019AP664-CR.jjk
Court to at least believe an in camera inspection be ordered for
the Court to determine whether or not there is anything in
the . . . psychiatric or psychological reports which would be of
materiality to the defendant." Id. at 604. According to the
court, the defendant presented "an adequate showing to indicate
that there may be psychological problems which do affect . . .
the individual's ability to accurately perceive what is going on
about [her]." Id.
¶86 The circuit court then ordered P.P to present all
medical records related to her mental health history within 21
days or be barred from testifying at trial. Id. at 604-05.
This order is particularly notable for its breadth and lack of
limitation. P.P. had told defense counsel that she had received
mental health treatment from the time she was six years old,
which meant that the court ordered P.P. to turn over twenty-
seven years of treatment records. Id. at 610; Brief of
Plaintiff-Appellant at 30, State v. Shiffra, 91-CF-451. Twenty-
seven years of vulnerabilities, traumas, and personal struggles,
all laid bare in front of the court. When faced with this
proposition, P.P. opted not to disclose, and the court issued an
order barring her from testifying. Shiffra, 175 Wis. 2d at 605.
¶87 The court of appeals affirmed the circuit court. Id.
at 602. It recognized that Shiffra needed to make a preliminary
showing of materiality by showing that "[P.P.'s] records are
relevant and may be necessary to a fair determination of guilt
or innocence." Id. at 610. However, the court then seemingly
ignored the fact that P.P.'s mental health records were
6
No. 2019AP664-CR.jjk
cumulative of other evidence already available to Shiffra——
namely, extensive information about P.P.'s mental health history
that defense counsel had already obtained from P.P. in an
interview. Id. at 610-11. The court's justification also
demonstrates the highly speculative nature of the demand for
P.P.'s records:
It may well be that the evidence contained in the
psychiatric records will yield no information
different from that available elsewhere. However, the
probability is equally as great that the records
contain independently probative information. It is
also quite probable that the quality and probative
value of the information in the reports may be better
than anything that can be gleaned from other sources.
Finally, the information might well serve as a
confirmation of [P.P.'s] reality problems in sexual
matters. It is the duty of the trial court to
determine whether the records have any independent
probative value after an in camera inspection of the
records.
Shiffra, 175 Wis. 2d at 611.
¶88 Because P.P. refused to release twenty-seven years of
privileged mental health records to the court for the purpose of
confirming her "reality problems in sexual matters," she was not
allowed to testify, and there was no trial. Instead, the
charges were significantly reduced to misdemeanors, and Shiffra
pled to one count of battery, one count of fourth degree sexual
assault, and one count of disorderly conduct. Judgment of
Conviction, State v. Shiffra, 91-CF-451. He was sentenced to
six months in jail, which was stayed, and was placed on
probation for three years. Id.
7
No. 2019AP664-CR.jjk
II. STATE V. S.C. JOHNSON
¶89 State v. S.C. Johnson, No. 2011AP1864-CRAC,
unpublished slip op. (Wis. Ct. app. Apr. 18, 2012), also
demonstrates how Shiffra's materiality requirement did nothing
to prevent some defendants' purely speculative requests. The
inherent speculation of requests for records under Shiffra was
exacerbated in this case, as in many others, because the request
was based on the possibility that the victim had not shared her
experience of sexual abuse with a therapist.
¶90 S.C. Johnson was charged with one count of repeated
sexual assault and three counts of incest by a stepparent for
incidents that took place when his stepdaughter, T.S., was
between twelve and fifteen years old. Id. at ¶3. Based on
these charges, his total exposure was 160 years in prison.
¶91 Johnson sought an in camera inspection of T.S.'s
therapy records. The request was premised entirely on the
unsupported possibility that the victim had "either denied or
did not disclose any sexual assault by Johnson" to her
therapist. Id. at ¶4.
¶92 Yet, the circuit court still ordered T.S. to turn over
her records, and when she refused based on privilege, the State—
—not the defendant——sought an order compelling production of her
records. Id. at ¶¶6-8. The circuit court decided that rather
than suppressing T.S.'s testimony, it would "inform the jury
that, as a result of the victim's refusal, a presumption exists
that the contents of the records would have been helpful to the
defense." Id. at ¶1.
8
No. 2019AP664-CR.jjk
¶93 The court of appeals upheld the circuit court's
determination regarding the in camera inspection based on the
mistaken idea that a lack of communication to a therapist about
sexual abuse would be relevant to the case:
We conclude that there is a "reasonable likelihood"
that the records contain relevant information
necessary to a determination of guilt or innocence
such that in camera inspection is required. The fact
that the purpose of the therapy was to address
interpersonal relationships between T.S. and Johnson
and that the therapy occurred during the time period
at issue makes it reasonably likely the records
contain relevant information necessary to a
determination of guilt or innocence.
Id., ¶15 (internal citation omitted).
¶94 Moreover, the court of appeals doubled down, reversing
the circuit court's decision regarding remedy and ordering the
suppression of T.S.'s testimony.1 Id. at ¶¶16-18. The decisions
of the circuit court and court of appeals were striking because
they ordered the disclosure of years and years of therapy
records in order to determine whether T.S. reported being
sexually abused. However, this premise is simply not relevant
given the prevalence of delayed reporting in child sexual
assault cases. See Tonya Lippert, et al., Telling Interviewers
About Sexual Abuse: Predictors of Child Disclosure at Forensic
Interviews, 14 Child Maltreatment 100, 100 (Feb. 2009)
("Research on children and adults indicates that children often
significantly delay disclosure of sexual abuse or keep the abuse
a secret into adulthood.").
On appeal, this court was divided and the court of appeals
1
decision stood. See State v. Johnson, 2014 WI 16, 353
Wis. 2d 119, 846 N.W.2d 1.
9
No. 2019AP664-CR.jjk
¶95 Unsurprisingly, without the testimony of T.S. there
was no trial. Instead, S.C. Johnson pled to amended misdemeanor
charges of fourth degree sexual assault and disorderly conduct.
Judgment of Conviction, State v. Johnson, 2011CF376. He served
four months in jail with Huber2 release privileges. Id.III. STATE V. LYNCH
¶96 State v. Lynch, 2016 WI 66, 371 Wis. 2d 1, 885
N.W.2d 89, demonstrates more of the same——a request for eighteen
years of mental health records based on the possibility that:
(1) the victim may have had a mental health diagnosis that could
have compromised her credibility, or (2) that the victim had not
communicated the abuse to her therapist.
¶97 Former Fox Lake Police Chief Patrick Lynch was charged
with three counts of first-degree sexual assault of a child and
three counts of stalking for incidents that started in 1989 when
the victim was seven years old. Lynch, 371 Wis. 2d 1, ¶12. He
faced over 30 years in prison. Prior to trial, Lynch filed a
Shiffra motion, seeking to subpoena the victim's "psychiatric,
psychological, counseling, therapy and clinical records" from
1993-2011 for in camera review. Id. at ¶13. The court granted
the motion based on two of the defendant's proposed rationales:
(1) the victim exhibited ongoing symptoms of post traumatic
stress disorder, an illness which sometimes affects the
sufferer's memory; and (2) contrary to some of the victim's
statements, the victim likely did not report Lynch to any
2Huber release grants leave privileges to county jail
prisoners for purposes such as employment, healthcare, attending
to family needs, and more. See Wis. Stat. § 303.08.
10
No. 2019AP664-CR.jjk
treatment providers as a child because those treatment providers
were mandatory reporters, but did not report the assault. State
v. Lynch, 2015 WI App 2, ¶¶13, 26, 359 Wis. 2d 482, 859 N.W.2d
125.
¶98 The circuit court found in favor of the defendant and
ordered the victim to disclose "the names and addresses of all
of her treatment providers since January 1, [1990]," and to
authorize the court to obtain her records. Lynch, 371 Wis. 2d
1, ¶14. It continued, "By treatment providers, the [c]ourt is
talking about physicians, psychologists, psychiatrists, and
other forms of therapists engaged in any form of counseling with
[the complainant] up to the present time." (Emphasis removed)
Id.¶99 The victim refused to turn over her mental health
records "[u]nless and until" the circuit court's determination
was reviewed by another court. Id. at ¶15. As a consequence,
pursuant to Shiffra, the court barred her from testifying
against Lynch at trial. The State filed an appeal, and the
court of appeals affirmed. Lynch, 359 Wis. 2d 482. The State
then appealed to this court, but we were divided and so the
court of appeals decision stood. Lynch, 371 Wis. 2d 1.
¶100 This case demonstrates how easily in camera review
could be obtained despite no showing of any individualized link
between the victim's records and the theory of the defense. By
the circuit court's logic, the therapy records of anyone who
displays symptoms of PTSD could have been subject to in camera
review. Since symptoms of PTSD are common for victims of sexual
11
No. 2019AP664-CR.jjk
assault (see Emily R. Dworkin, et. al., PTSD in the Year
Following Sexual Assault: A Meta-Analysis of Prospective
Studies, Trauma, Violence & Abuse (2021) (finding that about 75
percent of sexual assault victims experience symptoms of PTSD a
month after a sexual assault)), this and similar applications of
Shiffra exposed a sweeping number of victims to in camera review
of a wide swath, if not all, of their mental health records.
¶101 Also, this case again shows how courts ignored when
requested records were cumulative of other evidence. Lynch
already had statements from the victim's provider and a defense
expert that indicated the victim exhibited PTSD symptoms. It is
unclear what further probative value the victim's records
offered as Lynch had what he needed to make his case.
¶102 Without the victim's testimony, the charges were
amended and Lynch pled to four misdemeanor crimes: two counts of
attempted stalking and two counts of attempted misconduct in
office. Judgment of Conviction, State v. Lynch, 2010CR365. His
only penalty was to pay court costs. Id.IV. CONCLUSION
¶103 These cases all demonstrate the untenable choice that
Shiffra so often forced upon victims: (1) turn over years
(sometimes decades) of highly personal records based on little
more than speculation and incorrect assumptions about mental
health and sexual abuse; or (2) opt not to disclose, be barred
from testifying, and see their perpetrator walk away. This
approach was never "balanced." Shiffra was a thumb on the
scale. By subjecting victims to the risk of vast invasions of
12
No. 2019AP664-CR.jjk
their privacy and then sanctioning those victims who wished to
guard their most private records, Shiffra allowed perpetrators
to harass victims into silence.
13
No. 2019AP664-CR.awb
¶104 ANN WALSH BRADLEY, J. (dissenting). Admittedly,
this case raises a difficult issue. Protecting the rights of
both criminal defendants and victims often requires a delicate
balance.
¶105 Almost three decades ago, the court of appeals
attempted to strike that balance in State v. Shiffra, 175
Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993). And in State v.
Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, this court
embraced and refined the standard the court of appeals
established in Shiffra.
¶106 These cases set forth a procedure by which, if a
defendant believes there is relevant information located in a
victim's1 health records, the defendant may seek an in camera
review of those records. In order to receive an in camera
review, the defendant must meet an initial burden "to 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, 175 Wis. 2d at
608. "[T]he 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
As the majority opinion observes, a Shiffra/Green motion
1
could be filed to seek in camera review of any witness's
records. Majority op., ¶1 n.2. For the sake of consistency, I
also use the word "victim" throughout this writing.
1
No. 2019AP664-CR.awb
to other evidence available to the defendant." Green, 253 Wis.
2d 356, ¶34.
¶107 During this process, the victim has two opportunities
to refuse to disclose the documents——at the time the defendant
files a motion for in camera review or, if the circuit court
determines that the defense is entitled to the records, after
the in camera review but before the documents are disclosed. If
the victim does not disclose the records, then the victim cannot
later testify. See Shiffra, 175 Wis. 2d at 612.
¶108 The majority now discards this decades-old procedure,
relied upon by courts, litigants, and victims alike. And what
has the majority left in its place? Nothing.
¶109 Shiffra may not provide a perfect procedure, yet such
a goal is rarely achieved in our system of law. However, the
procedure is well-established, and has proven to be a workable
means of balancing the important interests at stake. Because
the majority both discounts the principle of stare decisis and
misapplies the stare decisis factors, I respectfully dissent.
I
¶110 This case has traveled a long and winding road to this
point, and Johnson's trial has not yet even begun. Johnson was
charged with multiple offenses, including sexual assault of his
son, T.A.J., and his daughter, K.L.J. Majority op., ¶2.
Pursuant to Shiffra and Green, Johnson filed a motion in the
circuit court for the court to conduct an in camera review of
counseling records of the two alleged victims. Id.
2
No. 2019AP664-CR.awb
¶111 After the State took no position on the motion, T.A.J.
submitted a brief in opposition. Id. The circuit court denied
the motion, determining that "there is no legal standing for
victims to file such motions." Upon T.A.J.'s interlocutory
appeal, the court of appeals reversed, determining that Article
I, § 9m of the Wisconsin Constitution gave the alleged victim
standing to oppose Johnson's Shiffra/Green motion. Id., ¶3;
State v. Johnson, 2020 WI App 73, ¶26, 394 Wis. 2d 807, 951
N.W.2d 616. Johnson petitioned for this court's review.
¶112 Last term, in September of 2021, we held an initial
oral argument, examining two issues raised by Johnson's petition
for review: (1) whether an alleged victim in a criminal case
has standing under Article I, § 9m of the Wisconsin Constitution
to lodge legal arguments in opposition to a defendant's motion
for in camera review, and (2) whether recent amendments to that
constitutional provision apply retroactively to an alleged
victim's request for standing prior to the enactment of the
amendment.2
¶113 As the majority correctly states, the parties' briefs
"understandably focused on the issue of [standing]." Majority
op., ¶4. It further explains that "[t]he State also asserted,
however, that Shiffra was wrongly decided." Id. What the
2 The parties also briefed the question of whether Wis.
Stat. § 950.105, which provides in relevant part that, "[a]
crime victim has a right to assert, in a court in the county in
which the alleged violation occurred, his or her rights as a
crime victim under the statutes or under article I, section 9m,
of the Wisconsin Constitution," confers standing on the alleged
crime victim in this matter.
3
No. 2019AP664-CR.awb
majority fails to explain is that this assertion was not raised
until it appeared in the State's response brief, and then it was
tucked away in a cryptic footnote: "Shiffra is incorrect to the
extent that it holds that Ritchie applies to records outside the
State's possession." With this oblique reference, the majority
was able to tee up the issue, reaching out to transform the case
to meet its desired quest——to overrule Shiffra.
¶114 After another round of briefing and another round of
oral argument, the majority now overrules Shiffra. In doing so,
it bases its determination on the assertions that Shiffra was
wrongly decided, is unworkable, and has been undermined by
developments in the law. Id., ¶1. Interestingly, in its final
footnote the majority reveals its true hand, acknowledging the
abandonment of the very issue for which we granted review:
"Because we hold that Shiffra must be overturned, we need not
address the parties' other arguments about [standing]." Id.,
¶47 n.21.
II
¶115 The majority's legal analysis gets off on the wrong
foot by giving short shrift to the principle of stare decisis.
¶116 Stare decisis refers to the principle that requires
courts to "stand by things decided" and is fundamental to the
rule of law. Hinrichs v. DOW Chem. Co., 2020 WI 2, ¶66 & n.12,
389 Wis. 2d 669, 937 N.W.2d 37. "This court follows the
doctrine of stare decisis scrupulously because of our abiding
respect for the rule of law." Johnson Controls, Inc. v. Emps.
4
No. 2019AP664-CR.awb
Ins. of Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665
N.W.2d 257.
¶117 "Fidelity to precedent ensures that existing law will
not be abandoned lightly. When existing law is open to revision
in every case, deciding cases becomes a mere exercise of
judicial will, with arbitrary and unpredictable results."
Schultz v. Natwick, 2002 WI 125, ¶37, 257 Wis. 2d 19, 653
N.W.2d 266 (internal quotations and footnotes omitted).
Accordingly, any departure from stare decisis "demands special
justification." Id.¶118 Such "special justification" can be found where
certain criteria articulated in our case law are present. Those
criteria include: (1) where changes or developments in the law
have undermined the rationale behind a decision; (2) where there
is a need to make a decision correspond to newly ascertained
facts; and (3) whether a precedent has become detrimental to
coherence and consistency in the law. Hinrichs, 389
Wis. 2d 669, ¶68. "We also consider 'whether the prior decision
is unsound in principle, whether it is unworkable in practice,
and whether reliance interests are implicated.'" Id. (quoting
Johnson Controls, 264 Wis. 2d 60, ¶99).
¶119 It is true that Shiffra is a court of appeals opinion,
and not an opinion of this court. See majority op., ¶20.
However, this court has applied and signaled its approval of
Shiffra time and time again. The majority simply assumes
without deciding that Shiffra "should be treated as precedent
5
No. 2019AP664-CR.awb
from this court" and moves on. Id., ¶22. But that isn't the
whole story.
¶120 In State v. Solberg, 211 Wis. 2d 372, 564 N.W.2d 775(1997), this court embraced Shiffra, explaining that the
procedure it established "strikes an appropriate balance between
the defendant's due process right to be given a meaningful
opportunity to present a complete defense and the policy
interests underlying the Wis. Stat. § 904.05(2) privilege."
Solberg, 211 Wis. 2d at 387 (footnote omitted). Further, we
stated that "giving the defendant an opportunity to have the
circuit court conduct an in camera review of the privileged
records, while still allowing the patient to preclude that
review, addresses both the interests of the defendant and the
patient." Id.¶121 Five years after we decided Solberg, we again had an
opportunity to consider the contours of Shiffra in Green, 253
Wis. 2d 356. There, we fine-tuned the standard set forth in
Shiffra, concluding that "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." Id.,
¶33. Rather than even remotely calling Shiffra into question,
the Green court refined the standard it presents, further
entrenching Shiffra in the law. See also Johnson v. Rogers
Mem'l Hosp., Inc., 2005 WI 114, ¶¶72-74, 283 Wis. 2d 384, 700
N.W.2d 27 (stating and relying on the Shiffra standard); State
v. Allen, 2004 WI 106, ¶31, 274 Wis. 2d 568, 682 N.W.2d 4336
No. 2019AP664-CR.awb
(same); State v. Rizzo, 2002 WI 20, ¶¶48-54, 250 Wis. 2d 407,
640 N.W.2d 93 (applying the Shiffra framework).
¶122 But that's not all. When explicitly given the
opportunity to do so on multiple occasions, this court has
declined to overrule Shiffra. First, in State v. Johnson, 2013
WI 59, ¶2, 348 Wis. 2d 450, 832 N.W.2d 609 (per curiam), the
court observed in a per curiam opinion that "[a] majority of the
court would not overrule Shiffra. Chief Justice Abrahamson,
Justice [Ann Walsh] 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."3
¶123 Then in State v. Lynch, 2016 WI 66, 371 Wis. 2d 1, 885
N.W.2d 89, the court again declined an opportunity to overrule
Shiffra. Lynch produced no majority opinion, but several
justices, constituting a clear majority, wrote regarding the
need to maintain Shiffra.
¶124 Justices Abrahamson and Ann Walsh Bradley stated:
"Contrary to Justice Gableman's opinion, we would not overrule
Shiffra. There are strong interests implicated when a defendant
seeks a witness's mental health treatment records." Id., ¶113
(Abrahamson & Ann Walsh Bradley, JJ., concurring in part,
dissenting in part). In describing these implicated interests,
these two justices observed that "[f]or defendants, it is the
3 The court later granted reconsideration in Johnson, but
the essential point that Shiffra should be maintained did not
change. State v. Johnson, 2014 WI 16, ¶3, 353 Wis. 2d 119, 846
N.W.2d 1 (per curiam) (granting reconsideration).
7
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interest in being able to present a complete defense," while
"[a]t the same time, patients have an interest in keeping their
mental health treatment records private." Id., ¶113-14. "The
Shiffra procedure takes both of these interests into account and
prescribes a reasonable balance" and "is consistent with the
approach taken by a majority of state courts." Id., ¶115-16.
¶125 Likewise, Justice Prosser wrote that he would leave
Shiffra intact. He stated:
Although the lead opinion by Justice Michael J.
Gableman makes a number of compelling arguments about
the foundation and lineage of Shiffra and Green, as
well as their effect on Wisconsin law, I am ultimately
persuaded that the better course for this court is to
address the concerns arising from these opinions
rather than to strike them down and start over. In my
view, overruling the opinions is more likely to
intensify controversy than to resolve it, as
overruling would seriously undermine a number of prior
decisions and would invite a host of new theories to
protect criminal defendants at trial.
Id., ¶152 (Prosser, J., dissenting).
¶126 Finally, then-Justice Ziegler indicated her support
for maintaining the Shiffra framework: "The Shiffra–Green line
of cases, while not perfect, has provided a reasoned and
reasonable approach to these difficult questions. Under
principles of stare decisis, I would not overthrow these well-
established cases without 'special justification,' and none has
yet been provided." Id., ¶192 (Ziegler, J., dissenting)
(internal citation omitted).
¶127 The majority here says that Lynch and Johnson indicate
that the validity of Shiffra remains an open question. Majority
op., ¶22. This is a tenuous assertion. Just because the State
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doesn't like Shiffra and continually seeks to overturn it does
not mean that the question was not given a definitive answer.4
In both of the cited cases, the court was presented with a clear
opportunity to overrule Shiffra and declined it. The fact that
Johnson was a per curiam opinion and Lynch resulted in no
majority does not change this fact.
¶128 This court has relied on and reaffirmed Shiffra to a
significant extent. Stare decisis weighs heavily in such a
situation. See Lynch, 371 Wis. 2d 1, ¶88 (Abrahamson & Ann
Walsh Bradley, JJ., concurring in part, dissenting in part).
¶129 The extent of the majority's destabilization is only
partially revealed in footnote 3. In addition to overruling
Shiffra, it apparently is also overruling in part State v.
Green, 253 Wis. 2d 356, State v. Rizzo, 250 Wis. 2d 407, State
v. Solberg, 211 Wis. 2d 372, State v. Behnke, 203 Wis. 2d 43,
55-57, 553 N.W.2d 265 (Ct. App. 1996), State v. S.H., 159
Wis. 2d 730, 465 N.W.2d 238 (Ct. App. 1990), and Rock Cnty.
Dep't of Soc. Servs. v. DeLeu, 143 Wis. 2d 508, 422 N.W.2d 142(Ct. App. 1988), and untold others, too numerous to mention.
The majority provides the above list of cases as only a sampling
of cases which it is overruling today.
¶130 But instead of acknowledging the force with which this
court has reaffirmed and maintained Shiffra, the majority
minimizes such reliance. See majority op., ¶¶21-22. I would
not do so. Consistency and stability in the law demands that we
4 See State v. Lynch, 2016 WI 66, ¶189, 371 Wis. 2d 1, 885
N.W.2d 89 (Ziegler, J., dissenting).
9
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give greater consideration to stare decisis than does the
majority.
III
¶131 Not only does the majority give short shrift to the
principle of stare decisis, but it also mistakenly concludes
that the relevant criteria weigh in favor of overruling Shiffra.
¶132 The majority bases its conclusion on three assertions:
(1) that "Shiffra is unsound in principle because it incorrectly
concluded that Ritchie applied to privately held and statutorily
privileged health records," majority op., ¶24; (2) that Shiffra
is "unworkable in practice because it cannot be applied
consistently and is inherently speculative," id., ¶34; and (3)
that Shiffra has been undermined by both "the removal of
procedural and evidentiary barriers to prosecuting sexual
assault cases and the passage of statutory and constitutional
protections for crime victims." Id., ¶40. All three assertions
prove to be unavailing, and I will address each in turn.
A
¶133 As a first basis for overruling Shiffra, the majority
asserts that it is unsound in principle. It points to a
purported misreading of Pennsylvania v. Ritchie, 480 U.S. 39(1987). In the majority's view, Shiffra erroneously concluded
that Ritchie, which addressed records in the State's possession,
applied to privately held records. Majority op., ¶25.
¶134 However, the Ritchie court merely dealt with the facts
before it, which involved records in the State's possession.
Nothing in that opinion forecloses its application outside of
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this narrow context. Although its conclusion was derived in
part from principles set forth in Brady,5 it went out of its way
to "express no opinion on whether the result . . . would have
been different if [a] statute had protected the [subject] files
from disclosure to anyone, including law-enforcement and
judicial personnel." Ritchie, 480 U.S. at 57 n.14; see also
Lynch, 371 Wis. 2d 1, ¶¶210-16 (Ziegler, J., dissenting).
Wisconsin statutes do not go so far as to protect privileged
records from everyone in all circumstances, see Wis. Stat.
§§ 146.82(2), 905.04(4), but "even if the statute[s] did not
allow such disclosure, the Ritchie court 'express[ed] no
opinion' on the potential distinction." Lynch, 371 Wis. 2d 1,
¶212 (Ziegler, J., dissenting).
¶135 Indeed, "courts in many other states have extended
Ritchie to cover records held by private health care providers."
Id., ¶167 (Prosser, J., dissenting); see State v. Kelly, 545
A.2d 1048, 1056 (Conn. 1988); Burns v. State, 968 A.2d 1012,
1024 (Del. 2009); People v. Bean, 560 N.E.2d 258, 273 (Ill.
1990); Cox v. State, 849 So.2d 1257, 1272 (Miss. 2003); State v.
Cressey, 628 A.2d 696, 703-04 (N.H. 1993); State v. Rehkop, 908
A.2d 488, 495-96 (Vt. 2006); Gale v. State, 792 P.2d 570, 581
(Wyo. 1990). Shiffra's analysis of Ritchie is thus not an
outlier.
¶136 A distinction between publicly and privately held
records has thus been persuasively rejected not only by this
court in Lynch, but also by courts around the country. Notably,
5 See Brady v. Maryland, 373 U.S. 83 (1963).
11
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the majority even recognizes that nothing in the Constitution
prohibits the adoption of the Shiffra procedure. Majority op.,
¶30 n.14. It should likewise recognize that nothing in its
opinion justifies this about-face. Regardless, the majority
soldiers on.
B
¶137 The majority contends next that Shiffra is unworkable.
Again, this assertion is handily dismantled. In asserting that
Shiffra is unworkable in practice, the majority points to
purported problems in the consistency of its application and the
"inherently speculative" nature of its inquiry. Majority op.,
¶34.
¶138 But just because judges may reach different
conclusions on similar facts does not mean that the standard
itself is unworkable. For example, judges reach differing
determinations on similar facts regarding whether reasonable
suspicion for a search exists all the time, but this does not
mean that reasonable suspicion is an unworkable standard.
Similarly, judges with similar facts in a criminal case,
applying the same standards, may reach different conclusions as
to what constitutes an appropriate sentence. Again, this does
not mean that the sentencing standards are unworkable.
¶139 Contrary to the majority's assertion, Shiffra provides
a clear standard and guiding principle on which all can rely.
This court has seen fit to tweak that standard on only one
occasion. See Green, 253 Wis. 2d 356, ¶¶33-34.
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¶140 The root of the majority's error on this point appears
to be in its refusal to recognize that the defendant's right to
present a complete defense is even implicated in the present
situation. See majority op., ¶28. This fundamental flaw
permeates the majority's analysis, causing it to discount the
defendant's interests and fail to grasp the true nature of the
problem to which Shiffra provides a solution. By sleight of
hand, the majority in essence states that there is no "due
process right to in camera review of a victim's privately held,
privileged health records upon a showing of materiality." Id.,
¶29. That is not the question. There is no constitutional
right to an in camera review. Rather, there is a constitutional
right to present a complete defense and an in camera review is
but a means of fulfilling that right.
¶141 Certainly there are weighty interests on the victim's
side as well, a premise that I do not dispute. But those
interests are protected both by the steep initial burden a
defendant must meet to be entitled to an in camera review, much
less access to records, and the absolute privilege to refuse to
disclose the records (albeit with the consequence of not being
able to testify). See Green, 253 Wis. 2d 356, ¶34 (setting
forth that "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"). Under this
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No. 2019AP664-CR.awb
standard, circuit courts do not take the decision to allow in
camera review lightly. Broad requests and fishing expeditions
will be rejected, and decisions are subject to appellate review.
¶142 As then-Justice Ziegler has aptly stated:
The Shiffra–Green framework provides a workable
solution to a difficult problem. Perhaps suggesting
its intrinsic equity, the framework forces every party
involved——the defendant, the privilege-holder, the
State——to shoulder a burden of some kind. The
defendant must meet the required evidentiary showings,
is never allowed his own review of the records at
issue prior to final disclosure, and may nevertheless
lose access to the records if the privilege-holder
does not consent to disclosure. The privilege-holder
must choose between limited disclosure of privileged
evidence which is reasonably likely to contain
relevant, non-cumulative information necessary to a
determination of the defendant's guilt or innocence
and preclusion of her testimony at trial. Finally,
the State faces the possibility that its prosecution
will be "hampered by a witness who strives to maintain
privacy."
Lynch, 371 Wis. 2d 1, ¶201 (Ziegler, J., dissenting) (citing
Behnke, 203 Wis. 2d at 55).
¶143 While the majority's result is certainly protective of
alleged crime victims, I question whether it impairs the truth-
seeking function of our courts. Although the majority is
correct that false reports are rare, see majority op., ¶43 n.17,
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No. 2019AP664-CR.awb
this is little comfort to the between 4.5 and 6.8 percent of
defendants who are falsely accused.6
¶144 For centuries, our jurisprudence has followed the
admonition that it is better for ten guilty people to go free
than one innocent languish in prison. See 4 W. Blackstone,
Commentaries on the Laws of England (1769) c. 27, p. 352; Furman
v. Georgia, 408 U.S. 238, 367 n.158 (1972) (Marshall, J.,
concurring); see also In re Winship, 397 U.S. 358, 372 (1970)
(Harlan, J., concurring). Benjamin Franklin voiced this same
sentiment, albeit with a different mathematical formulation. He
stated it as: "it is better 100 guilty Persons should escape
than that one innocent Person should suffer." 9 Benjamin
Franklin, Works 293 (1970), Letter from Benjamin Franklin to
Benjamin Vaughan (14 March 1785). Shiffra serves such an end,
and the majority's departure takes us further away from this
foundational principle.
C
¶145 The majority's contention that subsequent developments
in the law have undermined the Shiffra procedure also falls
flat.
I observe that the Shiffra procedure also may assist in
6
shielding a defendant from an allegation that is the result of a
false memory. See Johnson v. Rogers Mem'l Hosp., Inc., 2005 WI
114, ¶¶1, 4, 283 Wis. 2d 384, 700 N.W.2d 27; Sawyer v.
Midelfort, 227 Wis. 2d 124, 132-33, 595 N.W.2d 423 (1999). In
such a situation, access to counseling records may be of great
import. See Elizabeth F. Loftus, et al., Patient-
Psychotherapist Privilege: Access to Clinical Records in the
Tangled Web of Repressed Memory Litigation, 30 U. Rich. L. Rev.
109, 111 (1996).
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¶146 According to our methodology regarding stare decisis
as cited above, "changes or developments in the law" may
undermine the rationale behind a decision such that overruling
it is appropriate. Johnson Controls, 264 Wis. 2d 60, ¶98. The
majority points to several purported "developments" that have so
undermined Shiffra. First, it cites the removal of "many of the
procedural and evidentiary barriers" to prosecuting sexual
assault cases and the law's evolution away from distrust of
sexual assault victims. Majority op., ¶42. It also highlights
the expansion of victims' rights laws of both the statutory and
constitutional varieties. Id., ¶44.
¶147 The problem with the majority's invocation of alleged
developments in the law is that many of the "developments" cited
were in existence when Shiffra was decided in 1993. For
example, Wis. Stat. § 972.11(2)(b), the rape shield statute, was
enacted in 1975. See § 12, ch. 184, Laws of 1975. The
majority's reliance on State v. Clark, 87 Wis. 2d 804, 815, 275
N.W.2d 715 (1979), and State v. Jensen, 147 Wis. 2d 240, 250-51,
432 N.W.2d 913 (1988), suffers from a similar shortcoming. See
majority op., ¶42. The majority does not fully explain how
statutes and case law that were available to the Shiffra court
could subsequently undermine that court's determination other
16
No. 2019AP664-CR.awb
than to acknowledge that the Shiffra court did not consider
them. See id., ¶42 n.16.7
¶148 Likewise, the recent amendments to Article I, § 9m of
the Wisconsin Constitution do not compel the overruling of
Shiffra. Shiffra was grounded in the defendant's constitutional
right to present a complete defense. See Shiffra, 175
Wis. 2d at 605 ("Under the due process clause, criminal
defendants must be given a meaningful opportunity to present a
complete defense. . . . [A]n in camera review of evidence
achieves the proper balance between the defendant's rights and
the state's interests in protection of its citizens."). The
recent constitutional amendment cannot "undermine" this
rationale because it explicitly protects a defendant's federal
constitutional due process rights, including the right to
present a complete defense. See Wis. Const. art. I, § 9m(6)
(setting forth that sec. 9m "may not be interpreted to supersede
a defendant's federal constitutional rights").
¶149 The majority errs by overruling our longstanding
precedent. Pursuant to Shiffra, the bar defendants must clear
to be entitled to an in camera review is a high one, to say
7The majority also attempts to ascribe outsized importance
to a recently amended constitutional victim's rights provision,
arguing that the Shiffra court did not "appreciate [the]
importance" of the statutory changes cited "within the broader
context of the subsequently enacted statutory and constitutional
victim's rights provisions . . . ." See majority op., ¶42 n.16.
But the constitutional changes did not mark the beginning of the
trends the majority observes, which were well-established by the
time the constitution was amended. The relevant information was
available and could have been considered by the Shiffra court if
it deemed it relevant to its analysis.
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nothing of actually being entitled to a victim's health records.
Absent the Shiffra procedure, both defendants and the court
system as a whole are put at a disadvantage in seeking the
truth.
¶150 Instead of recognizing the delicate balancing the
Shiffra standard embodies, the majority upsets the balance. In
doing so, it replaces a "workable solution to a difficult
problem," hewn over three decades, with no solution at all. I
would leave the Shiffra framework intact rather than cast it
aside, leaving nothing in its place.
¶151 For the foregoing reasons, I respectfully dissent.
¶152 I am authorized to state that Chief Justice ANNETTE
KINGSLAND ZIEGLER joins this dissent.
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1