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Discovery – Privileged Records

State v. Frederick Robertson, 2003 WI App 84
For Robertson: Jefren Olsen, SPD, Madison Appellate

Issue/Holding: Where principal issue concerned the complainant’s credibility, indication first revealed after conviction that she had been treated for depression with psychotic features around the time of the incident required in camera inspection to determine whether her mental health records must be disclosed to the defense.

This case arrives at the unmapped intersection of postconviction discovery and privileged records. State v. Delano J. O’Brien, 223 Wis.2d 303, 588 N.W.2d 8 (1999) settled that you’re entitled to postconviction discovery of evidence relevant to an issue of consequence where the evidence would create a reasonable probability of a different outcome. But that case involved physical evidence; how do you apply the test to privileged material? Revelation of privileged material has been addressed in a series of cases, principally State v. Johnny L. Green, 2002 WI 68, 34, 253 Wis. 2d 356, 646 N.W.2d 298 (defendant must set forth a specific factual basis demonstrating a reasonable likelihood that the records contain relevant information that is necessary to a determination of guilt or innocence and that is not merely cumulative to other evidence available to the defendant) and State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), where the issue arose pretrial. The only published case discussing postconviction, in camera review of privileged material didn’t reach the question of probability-of-different result. State v. Behnke, 203 Wis. 2d 43, 53-54, 553 N.W.2d 265 (Ct. App. 1996). The defense showing necessary for in camera inspection is a preliminary one, and therefore should be less stringent than the test for disclosure:

¶22. We therefore conclude that the O’Brien “consequential evidence” test should not be used to decide whether to conduct an in camera review. A defendant requesting confidential records during postconviction discovery should be required to meet the preliminary Shiffra-Green burden. As with pretrial requests for confidential records, applying the Shiffra-Green test to the posttrial setting strikes the appropriate balance between the interests of the defendant and the State. It affords the defendant an opportunity to have a judge, an independent overseer, review the records while still protecting the privacy of the alleged victim. Then, if the defendant has shown an entitlement to an in camera review based upon the first four factors of the newly discovered evidence test, the trial court should apply the O’Brien “consequential evidence” test to determine whether the material it reviews during its in camera inspection should be disclosed to the defendant. We have every confidence in the trial courts to make a proper determination as to whether the disclosure of the information is necessary based on the competing interests involved in such cases. See Shiffra, 175 Wis. 2d at 611.¶23. The State argues that this conclusion is inconsistent with our decision in Behnke. This is simply not the case. Like Behnke, here we have adopted the materiality test from Shiffra, as it has been clarified in Green, and applied it to the third newly discovered evidence factor. Behnke, 203 Wis. 2d at 54. Additionally, as we have indicated, in Behnke, the defendant was engaging in what can be characterized as a “fishing expedition” and we did not reach the question of whether the fifth newly discovered evidence factor-whether it is reasonably probable that a different result would be reached on a new trial-should have been applied. See id. From our discussion of Green and Ritchie it is clear that the fifth newly discovered evidence factor, which is similar to the O’Brien “consequential evidence” test, normally does not come into play until the trial court is actually conducting the in camera inspection in its chambers.5 As we discussed, in Ritchie, the Court concluded that when deciding whether to release the records to the defendant, the trial court should determine whether the evidence was material, meaning the court should ask whether the result of the proceeding would have been different had the evidence been disclosed to the defendant, a test that mirrors the O’Brien test. Thus, contrary to the State’s assertions, our approach not only is consistent with our decision in Behnke, but also will bring Wisconsin into alignment with the teachings of the Supreme Court in Ritchie.


5 An exception would be if the trial court assumed the truth of every supposition the defendant hoped to gain by perusal of the confidential records, but nonetheless concluded that such evidence would not create a reasonable probability of a different result on retrial.

Applying the test to the particular facts: because trial centered on credibility (the complainant conceded that she had consensual sexual contact with the defendant; the disputed question is whether he failed to stop when she wanted), and because a psychiatrist indicated after trial that she might have been psychotic, “Robertson has presented evidence demonstrating that E.B.’s psychiatric difficulties might affect both her ability to accurately perceive events and her ability to relate the truth. These problems are relevant and necessary to a determination of guilt or innocence because they bear directly on both E.B.’s credibility and Robertson’s defense of consent. Thus, Robertson is entitled to an in camera inspection of the mental health records.” ¶31.

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