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“Shiffra” Material – Preliminary Showing for In Camera Inspection

State v. Johnny L. Green, 2002 WI 68, affirming unpublished court of appeals opinion
For Green: Nicolas G. Griswold

Issue/Holding: The court modifies the threshold showing required for an in camerainspection, in favor of “a slightly higher standard,” namely a “‘reasonable likelihood’ that the records will be necessary to a determination of guilt or innocence.”¶32.

¶34. Based on the above considerations, we set forth the following standard: the preliminary showing for an in camera review requires a defendant to set forth, in good faith, a specific factual basis demonstrating a reasonable likelihood that the records contain relevant information necessary to a determination of guilt or innocence and is not merely cumulative to other evidence available to the defendant. We conclude that the information will be “necessary to a determination of guilt or innocence” if it “tends to create a reasonable doubt that might not otherwise exist.” See Fuller, 667 N.E.2d at 855. This test essentially requires the court to look at the existing evidence in light of the request and determine, as the Shiffra court did, whether the records will likely contain evidence that is independently probative to the defense.¶35. In creating this standard, we intend to place the burden on the defendant 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. A good faith request will often require support through motion and affidavit from the defendant. Our standard is not intended, however, to be unduly high for the defendant before an in camera review is ordered by the circuit court. The defendant, of course, will most often be unable to determine the specific information in the records. Therefore, in cases where it is a close call, the circuit court should generally provide an in camera review. See Walther, 2001 WI App at ¶14. We have confidence in the circuit courts to then make a proper determination as to whether disclosure of the information is necessary based on the competing interests involved in such cases. See Shiffra, 175 Wis. 2d at 611. A circuit court may always defer ruling on such a request or require a defendant to bring a subsequent motion if the record has not had time to develop. A motion for seeking discovery for such privileged documents should be the last step in a defendant’s pretrial discovery.

Green’s showing falls short. He merely asserted that statements made in counseling might be inconsistent with other pretrial statements, ¶37.

But see State v. Frederick Robertson, 2003 WI App 84 (showing necessary for in camera inspection met, on postconviction review, Where defense found out after trial that complainant had been treated for depression with psychotic features around the time of the incident, and the principal trial issue concerned the complainant’s credibility.

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