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Shiffra-Green Procedure – Privileged Records – Remedy

State v. Samuel Curtis Johnson, III, 2011AP2864-CRAC, District 2, 4/18/12, WSC rev granted 11/14/12

court of appeals decision (not recommended for publication), supreme court review granted 11/14/12; for Johnson: Mark D.   Richards, Michael F. Hart, Craig S. Powell, Geoffrey R. Misfeldt; case activity

Shiffra-Green Procedure – Privileged Records – Remedy Where Witness Declines Consent for in Camera Review 

Johnson, charged with sexual assault of his stepdaughter T.S., provided a sufficient factual basis to trigger the in camera inspection procedure recognized by State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), and State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298 (very roughly: if the defendant asserts a specific factual basis demonstrating a reasonable likelihood that otherwise privileged records contain non-cumulative information material to guilt or innocence, then the trial court must conduct an in camera inspection of the records to determine their probative value). Johnson asserted that T.S. was in counseling during the time period covered by the alleged assaults; the purpose of the counseling was to discuss her relationships with family members, including Johnson; therefore, a reasonable likelihood exists that the counseling records contain exculpatory information, such as her denials or failure to mention any alleged assaults by Johnson.

¶15      We conclude that there is a “reasonable likelihood” that the records contain relevant information necessary to a determination of guilt or innocence such that in camera inspection is required.  See Green, 253 Wis. 2d 356, ¶32.  The fact that the purpose of the therapy was to address interpersonal relationships between T.S. and Johnson and that the therapy occurred during the time period at issue makes it reasonably likely the records contain relevant information necessary to a determination of guilt or innocence.  Just as the statements made by T.S. to a member of the child advocacy center and agents of the prosecution are relevant, the statements T.S. made to her therapists at the time of the alleged assaults may be relevant to the determination of guilt or innocence of Johnson.

However, T.S. declined to consent to release of these records, as was her right as the privilege holder, and an in camera inspection therefore can’t be accomplished. The remedy is suppression of T.S.’s testimony:

¶17      We find ourselves in the same factual and legal situation as in Shiffra:  An order for in camera inspection by the circuit court and an invocation of a Wis. Stat. § 905.04 privilege by the victim.  As an intermediate appellate court, we are without authority to modify, withdraw, or otherwise change the holding in Shiffra even if we wanted to.  See Cook v. Cook, 208 Wis. 2d 166, 189-90, 560 N.W.2d 246 (1997) (“[O]nly the supreme court, the highest court in the state, has the power to overrule, modify or withdraw language from a published opinion of the court of appeals.”).  Shiffra mandates the suppression of T.S’s testimony.

¶18      Given our adherence to Shiffra, we need not reach the circuit court’s remedy of allowing T.S.’s testimony, coupled with jury instructions, addressing the invocation of the privilege and the presumption flowing from it.  We note, however, that this option was presented to us in Shiffra and we held it to be “no solution at all.”  Shiffra, 175 Wis. 2d at 612 n.4.

It is quite possible that this isn’t the final word, as to which, take a close look at Chief Judge Brown’s interesting dissent, ¶¶21-31. He argues that § 146.82(2)(a)4. authorizes release of medical records without privilege-holder consent pursuant to “a lawful order of a court of record.” In his view, the rights to assert a privilege and present a defense are “equally conflicting interests and neither should be given absolute preference over the other,” ¶26. Thus, given these “two competing and compelling societal interests, it is for the court to balance these interests on a case-by-case basis.  The courts are especially equipped for this task.  Indeed, it is what judges do,” ¶27. Judge Brown would therefore mandate an in camera inspection of T.S.’s records, notwithstanding her refusal to cooperate with their release. This assumes a very broad grant of authority to compel release over privilege holder objection. A similarly worded provision, § 51.30(3), was deemed informed and therefore limited by enumerated exceptions in another subsection, In re Mental Condition of Billy Jo W., 182 Wis. 2d 616, 635, 514 N.W.2d 707 (1994). However, the “method of analysis of Wis. Stat. § 51.30 in Billy Jo W. is not applicable to Wis. Stat. § 146.82,” Crawford v. Care Concepts, 2001 WI 45, ¶33, 243 Wis. 2d 119, 625 N.W.2d 876 (further holding, ¶2, that § 146.82 allows release of nonprivileged information). Crawford went on to cite with approval (¶38) the holding in Ambrose v. General Casualty Co., 156 Wis. 2d 306, 456 N.W.2d 642 (Ct. App. 1990), that an order under § 146.82(1) “was not ‘lawful’ because it was beyond the court’s discretionary authority under § 804.10(2).” The order exceeded discretionary authority because it required Ambrose “to give carte blanche consent … to inspect and copy all of her health care records and reports, regardless of their confidential nature and regardless of the existence of a physician-patient privilege as to any of the records or reports,” 156 Wis. 2d at 311. So, untrammeled access isn’t allowed, but that still begs the question of just what limits might apply in the present context. Perhaps, none: the court would simply obtain access to all counseling records during the stated time frame, and make a determination of admissibility. Period. If the defendant’s and privilege-holder’s rights are in equipoise, the State’s interests may actually be paramount. It is enough to override confidentiality that the prosecution wants the privilege-holder’s testimony – in that very real sense, the State’s determination to proceed trumps the privilege.

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