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Postconviction Procedure – Discovery – Privileged Material – Insufficient Showing for In-Camera Inspection of Victim’s Toxicology Report

State v. Terry L. Kletzien, Jr., 2008 WI App 182
For Kletzien: James A. Rebholz


¶8        A person convicted of a crime has a due process right to postconviction discovery if “the desired evidence is relevant to an issue of consequence.” State v. Ziebart, 2003 WI App 258, ¶32, 268 Wis.  2d 468, 673 N.W.2d 369. Whether to grant a motion requesting postconviction discovery is committed to the trial court’s discretion. Id.

To obtain postconviction discovery of privileged material (here: victim’s medical and toxicology records), the defendant must first convince the court to inspect the material in-camera by showing a reasonable likelihood it is relevant, non-cumulative information necessary to guilt or innocence, ¶¶9-10, citing State v. Frederick Robertson, 2003 WI App 84 and State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), as clarified by State v. Johnny L. Green, 2002 WI 68. Klietzen, convicted of injury by intoxicated used of motor vehicle, made an insufficient showing for postconviction discovery of the victim’s (privileged) toxicology information in an effort to show he might have been partially responsible for the accident, ¶¶11-14 (no evidence alcohol was found in the victim’s vehicle or that the victim might have been impaired or that a toxicology report on the victim was even prepared). Therefore, he isn’t entitled to in-camera inspection, the first step for release of privileged material. Nor is he entitled to an evidentiary hearing on the possibility that testing evidence in the state’s possession could lead to exculpatory information, ¶¶17-21. (“Here, Kletzien seeks an evidentiary hearing not to determine whether the evidence he seeks is relevant, but rather, to determine whether any of the testing could possibly lead to exculpatory evidence or lead to a reasonable probability that the outcome of the proceedings would be different,” ¶19.)

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