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“Shiffra” Material – “Jensen” Testimony not Enough to Trigger

State v. Joseph F. Rizzo, 2002 WI 20, reversing and remanding 2001 WI App 57, 241 Wis. 2d 241, 624 N.W.2d 854
For Rizzo: Franklyn M. Gimbel

Issue: Whether the prosecution opened the door to otherwise privileged “Shiffra” evidence.


¶51. Before trial, the circuit court found that there was nothing relevant in D.F.’s treatment records that was not also in Dr. Pucci’s summary report. Although Dr. Pucci ventured beyond the scope of her summary report at trial in that the report did not say she would give Jensen testimony, it does not automatically follow that Rizzo was entitled to D.F.’s treatment records. Because Dr. Pucci’s factual testimony was anticipated, her Jensen testimony did not change the scope of relevant information in D.F.’s treatment records. The argument that Rizzo could somehow impeach Dr. Pucci’s expert knowledge of the common behaviors of sexual assault victims by accessing the treatment records of one of her patients is not persuasive.¶52. Rizzo also argues that he needed D.F.’s treatment records to cross-examine Dr. Pucci because it was unclear whether a statement in quotation marks in Dr. Pucci’s summary report was attributable to Dr. Pucci or to D.F.’s parents. The statement said that D.F. was ‘lying, and manipulative, and good at diverting attention.’ Dr. Pucci testified that these were not the parents’ exact words, but rather her interpretation of what they had said. She explained that she placed them in quotation marks to signify that she was quoting another source, an intake form.

¶53. Rizzo’s position appears to be that he was entitled to cross-examine Dr. Pucci using the treatment records because if the records would have revealed the source of the quote as D.F.’s parents, this would have undermined Dr. Pucci’s credibility. We do not adopt Rizzo’s position because it would eviscerate the procedure for in camera review set forth in Shiffra, which protects a victim’s confidential records. In effect, Rizzo’s position would provide that the defendant must receive full access to the victim’s treatment records in every case in order to effectively cross-examine an expert who treated the victim. That is in stark contrast to the in camera procedure under Shiffra, which specifically balanced the victim’s interest in confidentiality against the constitutional rights of the defendant. See 175 Wis. 2d at 609-10.


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