Issues (composed by On Point)
If the Shiffra/Green rule is not discarded, should the rule be modified to allow a witness to testify even if he or she refuses to disclose the confidential records the defendant is seeking?
This is a reprise of the issues raised but left unresolved in State v. Johnson, 2013 WI 59, on motions for reconsideration, 2014 WI 16. The court—minus Justices Prosser and Gableman, who didn’t participate—had a majority to retain the Shiffra/Green rule, but was divided about what the remedy should be if, after an in camera review, the witness whose records were being sought refused to disclose them. A full, even over-long explanation of how the court split is available at our post on Johnson.
Does the voting in Johnson give us any tea leaves to read to predict what will happen here? Well, of the justices participating in Johnson, there was only one vote (Justice Roggensack) to overrule Shiffra outright. Thus, Shiffra may survive even with the two additional justices participating, unless there’s been a change of heart (or personnel) among the four who upheld Shiffra in Johnson.
The vote on the remedy is harder to gauge because of the split between the four justices who voted to uphold Shiffra. Two justices (Abrahamson and Bradley) agreed with the state that the circuit court could order production of the records without the witness’s consent; one (Ziegler) concluded Johnson hadn’t met his burden for production anyway, so the witness could testify without having to produce the records; and the fourth (Crooks) stuck with the Shiffra remedy. While Justice Roggensack would’ve overruled Shiffra, she rejected the notion that the court could order production of privately held records. Thus, the views of Justice Prosser and Gableman may well control on the question of remedy.
All in all, an important case to watch. With the full complement of justices it is much more likely the decision will settle these issues, for better or for worse, instead of producing another splintered mess like Johnson.