Lynch was entitled to an in camera review of the complainant’s treatment records because there is a reasonable likelihood the records will reveal the complainant exhibits ongoing symptoms associated with PTSD that affect her ability to recall and describe pertinent events, and that she failed to report Lynch’s alleged sexual abuse of her to treatment providers, at least as a child.
In 2009, A.M. alleged Lynch had sexually assaulted her as a child almost 20 years earlier, during a time period she was also being assaulted by her father. She had reported the abuse by her father promptly, and he was prosecuted and convicted in 1993. After Lynch was charged in 2010, he sought an in camera review of A.M.’s records based on a detailed offer of proof about her psychological issues noted at her father’s trial, the on-going deleterious impact of the abuse by her father, and the apparent absence of any allegation against Lynch at or immediately following that prosecution. (¶¶2-6, 11-12).
Based on Lynch’s offer of proof and other undisputed facts, the circuit court, and now the court of appeals, agree Lynch has made a sufficient showing under State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), and State v. Green, 2002 WI 68, 253 Wis. 2d 536, 646 N.W.2d 298, because he showed a reasonable likelihood A.M.’s treatment records would contain probative, noncumulative evidence necessary to the determination of Lynch’s guilt or innocence. (¶¶14-38).
This fact-dependent opinion defies a quick summary in this space, but it is essential reading if you are deciding whether to bring or actually litigating a Shiffra/Green motion. Also worth noting is the court’s reliance on Lynch’s fine-grained offer of proof (¶12 n.4), as it both underscores the need to make a fact-specific showing and attests to the effort Lynch’s lawyer put forth in order to succeed.
Because A.M. refused to authorize release of her treatment records for in camera review, under Shiffra the proper remedy was exclusion of her testimony at trial. (¶¶41-45).
The state has long been seeking to get Shiffra overruled entirely, or failing that, to get rid of the remedy of exclusion when a victim refuses to release his or here records. The supreme court considered that argument during its 2012-13 term, in State v. Johnson, 2013 WI 59, 348 Wis. 2d 450, 832 N.W.2d 609, on motions for reconsideration, 2014 WI 16, 353 Wis. 2d 119, 846 N.W.2d 1, but it was unable to come up with a majority opinion on the issues, as explained by the court of appeals (¶6 n.3) and in On Point’s post on the case. Do not doubt that the state will file a petition for review in this case that asks the supreme court to have another kick at the can.