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State v. Samuel Curtis Johnson, III, 2011AP2864-CRAC, WSC review granted 11/14/12

on review of unpublished decisioncase activity

Issues (composed by On Point) 

1. Whether the defendant made the requisite showing for in camera review of the complainant’s privileged therapy records.

2. Whether, given necessity for in camera review, the complainant’s refusal to authority release of the records mandates suppression of her testimony.

The implications for the administration of State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993) are obviously great, especially with respect to the second issue. Shiffra held that “the only method of protecting Shiffra’s right to a fair trial was to suppress Pamela’s testimony if she refused to disclose her records,” id. at 612. The State would circumvent this dilemma by utilizing § 146.82(2)(a)4. which, the State says, “provides courts a mechanism for circuit courts to order privileged therapy records for” purposes of in camera inspection (a constitutionally mandated procedure, the State elaborates, that trumps the statutory rule of privilege). St.’s Br., COA, pp. 20-21. Chief Judge Brown, dissenting below, agreed, slip op., ¶25. Pretty fair to say, then, that the refusal-to-release Shiffra remedy is now very much up for grabs.

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