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SCOW majority overrules Shiffra/Green

State & T.A.J. v. Alan S. Johnson, 2023 WI 39, 05/16/2023, reversing a published court of appeals decision, case activity (including briefs)

As the dissent aptly describes it, “[t]his case has traveled a long and winding road to this point, and Johnson’s trial has not yet begun.” (Opinion, ¶110, Bradley, A.W., dissenting). As discussed in On Point’s prior posts, here and here, this case was originally about whether “Marsy’s Law” gave crime victims standing to intervene in ShiffraGreen litigation. After the court appeals held that it did and after Johnson petitioned for review, the supreme court took up the case. Then, in a footnote in its response brief, the state asserted that, “Shiffra is incorrect to the extent that it holds that Ritchie applies to records outside the State’s possession.” (Op., ¶110, Bradley, A.W., dissenting). Thereafter, the supreme court ordered supplemental briefing on a new question: “Should the court overrule State v. Shiffra…?” (Op., ¶4). And, now the majority has done just that.

Before jumping into the reasoning the majority of the court provided for overruling Shiffra, a two key points are worth noting up front. First, the court is clear that “nothing in our opinion should be read as questioning [Pennsylvania v.] Ritchie itself,” which dealt with an in camera review procedure applied to confidential health records in possession of the state. (Op., ¶1, n.3). Thus, nothing has changed with regard to a defendant’s right to an in camera review of records held by agencies such as child protective services or other confidential records held by the state. Second, because the court ultimately decided to overrule Shiffra, the majority did not reach the issue on which Johnson’s originally petitioned for review: whether victims have standing to litigate issues within a criminal case. (Op., ¶47).

In overruling Shiffra, and subsequent cases that “can be read to permit in camera review of privately held, privileged health records in a criminal case upon a showing of materiality,” the majority concludes that there are “three special justifications for overruling Shiffra:” (1) Shiffra is “unsound in principle because it incorrectly concluded that Ritchie applied to privileged (not just confidential) records not in the State’s possession and because it undermines the therapist-patient relationship;” (2) “the standard for obtaining in camera review articulated in Shiffra and Green is unworkable in practice;” and (3) “Shiffra has been undermined by the adoption of new statutory and constitutional provisions protecting the rights of victims, and is now detrimental to coherence in the law.” (Op., ¶23).

The majority concludes that Shiffra was “unsound in principle” for two reasons. First, and primarily, the court holds that Shiffra was wrong to apply Ritchie to privately and privileged medical records because Brady, upon which Ritchie relied, “imposes a disclosure obligation only on exculpatory and material evidence in the state’s possession.” (Op., ¶25). Second, the majority, with the exception of Rebecca Bradley, further holds that Shiffra’s public policy rationale (balancing the “competing goals of confidential privilege and the right to put on a defense”) both exceeded the powers of the court and “undermines the therapist-patient relationship.” (Op., ¶30).

Shiffra is “unworkable in practice,” says the majority, because “it cannot be applied consistently and is inherently speculative.” (Op., ¶34-39). On this point, the majority critiques and then compares the supposedly high burden imposed on defendants seeking in camera review of records with the speculative nature of the showing necessary to obtain in camera review under Green. (Op., ¶36-37). Because the court posits that defendants without access to privately held medical records must speculate about what they may contain, the supposedly high burden is not so in practice.

Finally, the court holds that Shiffra has been undermined by (1) “the removal of procedural and evidentiary barriers to prosecuting sexual assault cases” an (2) the passage of statutory and constitutional protections for crime victims.” (Op., ¶40). The court explains that despite many changes in the law applicable to sexual assault prosecutions, Shiffra “continues to reflect outdated skepticism toward victims of sexual assault.” The “outdated skepticism” to which the majority refers is a skepticism of “false reports,” which the court points to as a basis for Shiffra’s in camera review process and about which the court now says “we know that false reports of crimes are rare, and no more common in sexual assault cases than any other type of case.” (Op., ¶¶43). In a footnote, the court cites studies that “place the rate of false reports of sexual assault between 4.5 and 6.8 percent.” (Op., ¶¶43, n.17).

The court then turns to “the expansion of victim’s rights,” which further undermines Shiffra, which “did not consider the rights of crime victims at all.” (Op., ¶¶44-45).

This is truly a game-changing decision in terms of erasing one important, if relatively rare, tool used by the defense bar to defend our clients. The dissent rightly acknowledged that “this case raises a difficult issue,” but “p]rotecting the rights of both criminal defendants and victims often requires a delicate balance.” (Op., ¶104). Further, the dissent bluntly assesses the new status quo: “The majority now discards this decades-old procedure, relied upon by courts, litigants, and victims alike. And what has the majority left in its place? Nothing.” (Op., ¶108).

Much more could be said about the majority decision, as well as the two concurrences, one by Justice Rebecca Bradley and another by Justice Karofsky, but the bottom line is that five justices have finally ceded to the state’s pleas to overrule Shiffra/Green.

PLEASE, however, do not mistake this decision as doing away with the in camera review process for non-privately held confidential records that may be material to a potential defense. As made clear by the court and as noted above, this decision has no impact whatsoever on the application of Ritchie in Wisconsin. Where there is reason to believe that the state, county, or other public entity possesses records related to an allegation against a criminal defendant, Ritchie, and any case that doesn’t concern privately held confidential records, provides the legal basis to investigate and seek at least an in camera review of confidential records that may be material to the case. Furthermore, nothing in the decision affects the state’s obligations under Brady v. Maryland or the potential use of the statutory exceptions to doctor-patient or therapist-patient privilege as a means to seek evidence material to the defense.


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