stating that three justices would have overruled Shiffra, one would have applied it as it was, and three would have modified it in various ways
How later courts described this case
- stating that three justices would have overruled Shiffra, one would have applied it as it was, and three would have modified it in various ways
- Abrahamson & A.W. Bradley, JJ., concurring in part, dissenting in part
Written by the judges who cited it.
The opinion
2016 WI 66
SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP2680-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Appellant-Petitioner,
v.
Patrick J. Lynch,
Defendant-Respondent.
REVIEW OF A DECISION BY THE COURT OF APPEALS
(Reported at 359 Wis. 2d 482, 859 N.W.2d 125)
(Ct. App. 2014 – Published)
PDC No: 2015 WI App 2
OPINION FILED: July 13, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 12, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dodge
JUDGE: Andrew P. Bissonette
JUSTICES:
CONCURRED: ROGGENSACK, C. J. concurs (Opinion filed).
CONCURRED/DISSENTED: ABRAHAMSON, J. and BRADLEY, A. W., J. concur
and dissent (Co-authored opinion filed).
DISSENTED: PROSSER, J. dissents (Opinion filed).
ZIEGLER, J. dissents (Opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-appellant-petitioner, the cause was
argued by Marguerite M. Moeller, assistant attorney general,
with whom on the briefs was Brad D. Schimel, attorney general.
For the defendant-respondent, there was a brief by Robert
R. Henak, and the Henak Law Office, S.C., Milwaukee, WI, with
whom on the brief was Christopher T. Van Wagner and Christopher
T. Van Wagner S.C., Madison, WI. Oral argument by Robert R.
Henak.
2016 WI 66
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP2680-CR
(L.C. No. 2010CF365)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Appellant-Petitioner, FILED
v. JUL 13, 2016
Patrick J. Lynch, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Respondent.
REVIEW of a decision of the Court of Appeals. As a result
of a divided court, the law remains as the court of appeals has
articulated it.1
1
While five Justices would reverse the decision of the
court of appeals——in whole or in part——no more than three
Justices can agree on the same rationale or result.
Consequently, the law remains as the court of appeals has
articulated it. First, Justice Gableman, joined by Chief Justice
Roggensack and Justice R.G. Bradley, would overturn State v.
Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993)
modified by State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646
N.W.2d 298 (hereinafter Shiffra/Green). Second, Justice
Abrahamson and Justice A.W. Bradley would not overturn
Shiffra/Green but would interpret Shiffra to allow for
additional remedies, including release of the privileged records
pursuant to Wis. Stat. § 146.82(2)(a)4. Third, Justice Prosser
would not overturn Shiffra/Green, and though he would consider
additional remedies, he would not permit a circuit court to
compel release of the complainant's privileged records pursuant
(continued)
No. 2011AP2680-CR
¶1 MICHAEL J. GABLEMAN, J. This is a review of a
published decision of the court of appeals2 that affirmed the
Dodge County Circuit Court's3 findings that (1) Patrick Lynch
("Lynch"), the defendant, made an adequate showing for an in
camera review of the complainant's privileged mental health
treatment records and (2) the complainant's testimony must be
excluded at trial because the complainant refused to disclose
her privileged mental health treatment records.
¶2 This case requires us to reexamine State v. Shiffra,
175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993) modified by
State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298
(hereinafter Shiffra/Green). Shiffra/Green established a process
to Wis. Stat. § 146.82(2)(a)4. Finally, Justice Ziegler would
not overturn Shiffra/Green and interprets Shiffra to allow for a
single remedy (preclusion of the privilege-holder's testimony).
In this case, "no [majority of] justices reach agreement to
either affirm, reverse, or modify the decision of the court of
appeals consistent with precedent. Consequently, the court of
appeals decision remains the law of the case." State v. Johnson,
2014 WI 16, ¶2, 353 Wis. 2d 119, 846 N.W.2d 1 (per curiam)
(Johnson II) (citing Phillips v. U.S. Bank Nat'l Ass'n, 2010 WI
131, ¶¶1-2, 329 Wis. 2d 639, 791 N.W.2d 190)).
We note in passing that Justice Abrahamson and Justice A.W.
Bradley attempt to divert attention from the merits of this
important case. Lest we be incorrectly perceived as accepting
their invitation to lose sight of the forest for the trees, here
is the bottom line: "the court of appeals decision remains the
law of the case." Johnson II, 353 Wis. 2d 119, ¶2 (per curiam).
2
State v. Lynch, 2015 WI App 2, 359 Wis. 2d 482, 859
N.W.2d 125.
3
The Honorable Andrew P. Bissonnette presided.
2
No. 2011AP2680-CR
under which a criminal defendant in Wisconsin could obtain an in
camera review of a person's privileged4 mental health treatment
records. Under Shiffa/Green, a defendant can acquire a
complainant's privileged mental health treatment records when he5
demonstrates "a reasonable likelihood that the records contain
relevant information necessary to a determination of guilt or
innocence . . . ."6 Green, 253 Wis. 2d 356, ¶19.
¶3 In this case, Lynch filed a pretrial motion pursuant
to Shiffra/Green, seeking an in camera inspection of "all
psychiatric, psychological, counseling, therapy and clinical
records" of the complainant for the treatment she received
during the time period 1993-2011. The circuit court granted
Lynch's motion for in camera review of the complainant's
privileged mental health treatment records and ordered the
4
Wisconsin's privilege statute provides, "A patient has a
privilege to refuse to disclose and to prevent any other person
from disclosing confidential communications made or information
obtained or disseminated for purposes of diagnosis or treatment
of the patient's physical, mental, or emotional
condition . . . ." Wis. Stat. § 905.04(2).
5
Throughout this opinion, we use the pronoun "he" when
referring to a defendant because the defendant, Lynch, is a
male.
6
State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d
298, states the Shiffra/Green test as follows: "[T]he standard
to obtain an in camera review requires a defendant to set forth,
in good faith, a specific factual basis demonstrating a
reasonable likelihood that the records contain relevant
information necessary to a determination of guilt or innocence
and is not merely cumulative to other evidence available to the
defendant." Id., ¶19.
3
No. 2011AP2680-CR
complainant to sign a release of records. Further, the court
informed the complainant that if she refused to turn over her
privileged mental health treatment records, her testimony would
be "barred at trial." The complainant refused to give up her
privileged mental health treatment records "[u]nless and until"
the circuit court's determination was reviewed by another court.
As a result, the circuit court barred the complainant from
testifying at trial. The State appealed, and the court of
appeals affirmed the circuit court's order barring the
complainant from testifying at trial. The State appealed.
¶4 The State makes three arguments on appeal. First, the
State argues that we should overrule Shiffra/Green because it
originates from a serious misinterpretation of Pennsylvania v.
Ritchie, 480 U.S. 39 (1987). Second, the State argues that, if
Shiffra/Green remains, we should clarify that witness preclusion
(barring a complainant from testifying at trial) is not the only
remedy available to the circuit court when a complainant refuses
to waive her privilege. Third, the State argues that a circuit
court should be able to use Wis. Stat. § 146.82(2)(a)4. (2013-
14)7 to require production of the privileged mental heath
7
Wisconsin Stat. § 146.82(2)(a)4. (2013-14) allows a
patient's confidential health care records to be "released upon
request without informed consent" "under a lawful order of a
court of record."
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated. Although the
acts giving rise to the alleged crimes in this case date back
many years, we cite to the most current version of the statutes
as no pertinent changes have been made.
4
No. 2011AP2680-CR
treatment records even when the complainant refuses to consent
to release.
¶5 Accordingly, three issues are presented for our
review.8 The first is whether we should overrule Shiffra/Green.
The second is whether witness preclusion is the only remedy
available to the circuit court when a complainant refuses to
waive her privilege. The third is whether a circuit court may
use Wis. Stat. § 146.82(2)(a)4. to require production of the
privileged mental heath treatment records when the complainant
refuses to consent to release.
¶6 These issues, in particular the first and second
issues, have divided this court for a number of years. See State
v. Johnson, 2013 WI 59, 348 Wis. 2d 450, 832 N.W.2d 609 (per
curiam) (Johnson I), reconsideration granted, 2014 WI 16, 353
8
The State's petition for review framed the three issues as
follows:
1. Do defendants have a constitutional right to
disclosure of privately held privileged records? If
they do, what is the basis for the constitutional
right?
2. After determining that Lynch had made the showing
required by Shiffra/Green, could the circuit court
have invoked Wis. Stat. § 146.82(2)(a)4. to obtain
[the complainant's] records without her consent?
3. Assuming a circuit court cannot obtain a witness's
privileged records without her consent pursuant to
Wis. Stat. § 146.82(2)(a)4., is witness preclusion
always required when a defendant satisfies
Shiffra/Green but the victim withholds consent to an
in camera review of her privileged records?
5
No. 2011AP2680-CR
Wis. 2d 119, 846 N.W.2d 1 (per curiam) (Johnson II). These
issues continue to divide this court.
¶7 Justice Gableman, joined by Chief Justice Roggensack
and Justice R.G. Bradley, would overturn Shiffra/Green. Our
reasoning is outlined in this lead opinion.9 Justice Abrahamson
and Justice A.W. Bradley would not overturn Shiffra/Green but
would interpret Shiffra to allow for additional remedies,
including release of the privileged records pursuant to Wis.
Stat. § 146.82(2)(a)4. Justice Prosser would not overturn
Shiffra/Green, and though he would consider additional remedies,
he would not permit a circuit court to compel release of the
complainant's privileged records pursuant to § 146.82(2)(a)4.
Finally, Justice Ziegler would not overturn Shiffra/Green and
interprets Shiffra to allow for a single remedy (preclusion of
the privilege-holder's testimony).
¶8 We conclude that Shiffra/Green improperly relied on
Ritchie when it invented a right to access privileged
information (specifically a complainant's privileged mental
health treatment records) via a motion for in camera review. We
9
As noted previously, while five Justices would reverse the
decision of the court of appeals——in whole or in part——no more
than three Justices can agree on the same rationale or result.
As a result, the law remains as the court of appeals has
articulated it. See Johnson II, 353 Wis. 2d 119, ¶2 (per curiam)
("Specifically, no [majority of] justices reach agreement to
either affirm, reverse, or modify the decision of the court of
appeals consistent with precedent. Consequently, the court of
appeals decision remains the law of the case." (citing Phillips,
329 Wis. 2d 639, ¶¶1-2)).
6
No. 2011AP2680-CR
further conclude that Shiffra/Green cannot be grounded in any
other legal basis, specifically any other constitutional
provision. We would, therefore, overrule Shiffra/Green and its
progeny. Consequently, we need not address the second and third
issues presented for review.10
I. BACKGROUND
¶9 As a young child, the complainant was repeatedly
sexually assaulted by her father. It was during this period of
sexual abuse that the complainant sought mental health
treatment. Her father was eventually charged and convicted of
five counts of first-degree sexual assault of a child.
¶10 In the case before us, the complainant alleges that
during the same time her father was sexually assaulting her, she
was also being sexually assaulted by another——the defendant,
Lynch. At the time of the alleged sexual assaults, Lynch was a
law enforcement officer and was "good friends" with the
complainant's father. According to the complainant, Lynch
sexually assaulted her on six or seven occasions in her father's
home. The following excerpts taken from the complainant's
testimony while she was being questioned by Lynch's attorney at
his preliminary hearing reveal the nature of three of the
alleged sexual assaults:
10
See, e.g., Hull v. State Farm Mut. Auto Ins. Co., 222
Wis. 2d 627, 640 n.7, 586 N.W.2d 863 (1998) ("As a general rule,
when our resolution of one issue disposes of a case, we will not
address additional issues.").
7
No. 2011AP2680-CR
Q. The first time it happened –- let's talk about the
first time it happened. You went into this bathroom
that you agree was about three feet by five feet
approximately.
A. Yes.
Q. And there is a toilet and sink in this small room.
A. Right.
Q. And what you recall is, what, you walked in the
bathroom. Did you close the bathroom door?
A. Yes, I was in there going to the bathroom.
Q. Was your dad in the house at the time?
A. Yes, he was.
Q. And [Lynch] opened the door?
A. And came in.
Q. And were your slacks down at that point because you
were going to the bathroom?
A. I was pulling them up because I had just finished
going to the bathroom.
Q. And did he then take his clothes off?
A. He then put me on the ground.
. . . .
Q. And did he take your clothes off?
A. I had to pull my pants down.
Q. Did he tell you to do that or did he do it?
A. He told me to do it.
. . . .
Q. Did he take his trousers completely off to the best
of your recollection?
8
No. 2011AP2680-CR
A. I remember him taking them down. I don't know if
they came off completely
Q. You stated that he placed his penis inside of your
vagina, correct?
A. Correct.
Q. Did he ejaculate?
A. I don't know.
Q. I know this may be difficult, but approximately how
long, in terms of time, was his penis inside of your
vagina?
A. Like five or ten minutes.
Q. Did you cry out or scream for help, or did you cry
out or scream in pain?
A. No, because I was terrified. He was wearing a cop
uniform and he had a gun and I was terrified of what
he would do.
Q. To your knowledge did you father know what was
going on?
A. Yes.
Q. How do you know that your father knew what was
going on?
A. Because he was right outside the door when it was
happening.
. . . .
Q. What do you remember happening on the second
incident in the winter of 1990?
A. I got called into the bathroom and he told me to
take my pants off. That's when he started fondling me.
Q. And did he, during that incident, take off his
trousers?
A. Yes.
9
No. 2011AP2680-CR
. . . .
Q. [A]fter he started fondling you, did he place you
again on the floor?
A. Yes.
Q. And how long did this incident happen going
forward?
A. It felt like hours, but it was probably 15, 20
minutes.
Q. Do you remember if he ejaculated during that time?
A. I would believe so. At that time I -- you know, you
don't think about anything else. I [was] trying to
just block my mind and lay there.
Q. That floor, was it a hard floor or was there a rug
on it?
A. Hard.
Q. So like linoleum or something?
A. Cold.
. . . .
Q. So what happened during th[e] [third] occasion?
. . . .
A. I got called down again and I --
Q. Why did you go?
A. Because I felt like I had no choice. I was scared.
I was a little girl.
. . . .
Q. Your dad called you down and then [Lynch] took over
and --
A. And we went into the bathroom. At that time he made
me sit on the toilet and perform oral sex on him.
10
No. 2011AP2680-CR
Q. Did he do -- did anything else occur? Did anything
else occur during this time besides oral sex?
A. After that he laid me down on the floor and stuck
his penis into my vagina.
Q. Were you crying during this incident?
A. Yes.
Q. The first incident were you crying?
A. Yeah.
Q. Second incident were you crying?
A. I had tears.
Q. Third incident when [another person] was there you
were crying?
A. Yes, I had tears. I was afraid to make any noise or
any sound.
. . . .
The testimony of the complainant reveals that the alleged sexual
assaults included forced "fondling," "oral sex," and
"intercourse." According to the complainant, all of the sexual
assaults took place in a small bathroom (described in the above
testimony) next to the kitchen.
¶11 The complainant also testified that after her father's
trial (which took place a few years after the alleged sexual
abuse occurred), Lynch would show up where she worked. The
following excerpt, again taken from the complainant's testimony
at the defendant's preliminary hearing reveals the nature of the
alleged stalking:
Q. Tell us what you saw when you were working there
during that time? What happened?
11
No. 2011AP2680-CR
A. The first time I saw him through the drive-thru and
he did the same thing that he did at [another
workplace], and he would stare me down and I walked
away at that time. I was a supervisor, so I could exit
and I didn't have to take transactions. So I would go
in back by the vault.
Q. Okay. How many times did that occur during the time
that you were working there between May of 2007 and
February of 2008 that he would go through –- that you
could see the defendant at the drive-thru?
A. At the drive-thru probably three times, four times.
Q. Okay. Total four times?
A. In the drive-thru. He did come into the lobby of
the bank too.
Q. Okay. Tell us about when he would come into the
lobby of the bank what would happen.
A. He would walk in and walk up to the table and kind
of look at where I was at, and then wait for my teller
line to be open, then approach mine. Then I would have
one of the tellers come and take my spot and I would
exit.
Q. How many times do you recall that happening during
the time that you were working there?
A. Like three.
Q. Okay. How do you know . . . that it just wasn't the
line that was open for him to conduct business at your
teller window?
A. Because there was always more than one teller. I
was just the one who filled in when the lines were
long. And there would be other tellers open at that
time when he would approach my window.
Q. Okay. When this was occurring, how did you feel
when you saw the defendant at [your workplace]?
A. I was terrified.
Q. Why is that?
12
No. 2011AP2680-CR
A. Because it put me back to when I was a little girl.
I mean, I was afraid. He wore the same uniform that he
did –- I mean, when he molested me, that he did when
he came to [my workplace].
¶12 Many years after the alleged sexual assaults and
stalking by Lynch took place, the State charged Lynch with three
counts of first-degree sexual assault of a child11 and three
counts of stalking12.13
11
Wisconsin Stat. § 948.02(1) provides, "Whoever has sexual
contact or sexual intercourse with a person who has not attained
the age of 13 years and causes great bodily harm to the person
is guilty of a Class A felony." Sexual intercourse is defined as
"vulvar penetration as well as cunnilingus, fellatio, or anal
intercourse between persons or any other intrusion, however
slight, of any part of a person's body or of any object into the
genital or anal opening either by the defendant or upon the
defendant's instruction. The emission of semen is not required."
Wis. Stat. § 948.01(6).
12
Wisconsin Stat. § 940.32(2) states,
Whoever meets all of the following criteria is guilty
of a Class I felony:
(a) The actor intentionally engages in a course of
conduct directed at a specific person that would cause
a reasonable person under the same circumstances to
suffer serious emotional distress or to fear bodily
injury to or the death of himself or herself or a
member of his or her family or household.
(b) The actor knows or should know that at least one
of the acts that constitutes the course of conduct
will cause the specific person to suffer serious
emotional distress or place the specific person in
reasonable fear of bodily injury to or the death of
himself or herself or a member of his or her family or
household.
(c) The actor's acts cause the specific person to
suffer serious emotional distress or induce fear in
the specific person of bodily injury to or the death
(continued)
13
No. 2011AP2680-CR
¶13 Prior to trial, Lynch filed a Shiffra/Green motion,
seeking to subpoena the complainant's "psychiatric,
psychological, counseling, therapy and clinical records" from
1993-2011 for in camera review. Lynch claims that the
complainant's treatment records will likely contain information
related to his defense. More specifically, Lynch contends the
records will show that (1) the complainant exhibits ongoing
symptoms of post traumatic stress disorder, which he argues
affects her memory; (2) the complainant did not report Lynch to
any treatment providers as a child; and (3) the complainant has
sociopathic personality disorder, a symptom of which is frequent
lying.
¶14 The circuit court granted Lynch's motion for in camera
review of the complainant's privileged mental health treatment
records. It ordered the complainant to disclose "the names and
addresses of all of her treatment providers since January 1,
1980." It then stated, "By treatment providers, the [c]ourt is
talking about physicians, psychologists, psychiatrists, and
other forms of therapists engaged in any form of counseling with
[the complainant] up to the present time." (Emphasis added.) The
court further ordered that if the complainant failed to release
of himself or herself or a member of his or her family
or household.
13
Only one of the three stalking charges arose out of
Lynch's interactions with the complainant. The other two charges
stem from Lynch's interactions with other women.
14
No. 2011AP2680-CR
these records to the court, it would, pursuant to the remedy
contained in Shiffra/Green, bar her testimony at trial.
¶15 The complainant refused to surrender her privileged
mental health treatment records "[u]nless and until" the circuit
court's determination was reviewed by another court. As a
consequence, the court barred her from testifying against Lynch
at trial. The State filed an appeal.
¶16 The court of appeals affirmed. State v. Lynch, 2015 WI
App 2, 359 Wis. 2d 482, 859 N.W.2d 125. The court of appeals
agreed with the circuit court's finding that Lynch had met the
showing required by Shiffra/Green.14 The court further agreed
"with the circuit court that, under Shiffra[/Green], the only
available remedy when a victim refuses to disclose records for
an in camera review is the exclusion of the victim's testimony
at trial." Id., ¶1. As a result, the court of appeals remanded
for further proceedings. The State filed a petition for review
to this court, and we granted the State's petition.15
14
The issue of whether Lynch made the requisite showing
under Shiffra/Green is not at issue before this court because
the State did not seek review of the court of appeals'
conclusion that Lynch met the Shiffra/Green showing.
15
The dissent repeatedly chastises the State for bringing
the present claim before this court. See, e.g., Justice
Ziegler's dissent, ¶189. The State's decision to appeal this
case should not be harshly rebuked because the law in this case
is anything but "settled." After five Justices could not reach a
consensus in State v. Johnson, 2013 WI 59, 348 Wis. 2d 450, 832
N.W.2d 609 (per curiam) (Johnson I) and Johnson II, the State
was left with a messy predicament. As the State explained in its
petition for review, it seeks some much needed clarity:
(continued)
15
No. 2011AP2680-CR
II. DISCUSSION
¶17 We begin by briefly discussing the difference between
privilege and confidentiality, and the two statutes involved in
this case: Wis. Stat. § 905.04 (privilege statute) and Wis.
Stat. § 146.82 (confidentiality statute). We then explain why it
was improper for the Shiffra/Green court to rely on Ritchie when
it created a right to access privileged information via a motion
for in camera review. Next, we discuss why Shiffra/Green's right
to access privileged information via a motion for in camera
review cannot be grounded in any other legal basis, specifically
any other constitutional provision. We note that even if there
were a right, that right would need to be balanced against
§ 905.04, the privilege statute. We would analogize this case,
which involves access to information, to situations involving
the presentation of evidence at trial. A series of opinions from
the Supreme Court of the United States instruct that when a
defendant seeks to present evidence at trial and is barred by
statute from doing so, a court may strike down the statute only
when it is arbitrary or disproportionate to the purpose the
statute is designed to serve. Here, the privilege statute is
neither arbitrary nor disproportionate to the purpose it was
To this day, [] this court has never issued a
precedential decision addressing——other than in
passing——the state's arguments for why Shiffra rests
on shaky constitutional ground and should be
overruled. This case affords the court the opportunity
to have all seven justices weigh in on this extremely
important constitutional question.
16
No. 2011AP2680-CR
designed to serve. Finally, we end by discussing a few ways
defendants can meaningfully present a defense without having
access to a complainant's privileged mental health treatment
records.
A. STANDARD OF REVIEW
¶18 This case requires us to interpret and apply the
United States Constitution and the Wisconsin Constitution as
well as various statutes. "The interpretation of a
constitutional provision is a question of law that we review de
novo." Appling v. Walker, 2014 WI 96, ¶17, 358 Wis. 2d 132, 853
N.W.2d 888. "The interpretation and application of a statute
present questions of law that this court reviews de novo while
benefitting from the analyses of the court of appeals and
circuit court." State v. Alger, 2015 WI 3, ¶21, 360 Wis. 2d 193,
858 N.W.2d 346.
B. PRIVILEGE AND CONFIDENTIALITY
¶19 Two statutes, one relating to privilege and one
relating to confidentiality, are relevant to the present case.
Wisconsin Stat. § 905.04 protects a person's information by
making that information privileged: "A patient has a privilege
to refuse to disclose and to prevent any other from disclosing
confidential communications made or information obtained or
disseminated for purpose of diagnosis or treatment . . . ." In
contrast, Wis. Stat. § 146.82 protects information by making it
confidential: "All patient health care records shall remain
confidential." We must be mindful of the difference between
privileged information and confidential information:
17
No. 2011AP2680-CR
Although they are separate concepts, the terms
privilege and confidentiality are often confused.
Privilege is an exception to the general rule that the
public has a right to every man's evidence.
Confidentiality is an ethic that protects the client
from unauthorized disclosure of information about the
client by the therapist . . . . The presence of
confidentiality alone is not enough to support a
privilege. Refusal by a professional to testify in the
absence of a privilege may result in a charge of
contempt of court against the professional, while a
breach of confidentiality may be the subject of a tort
action. Confidentiality, therefore, is a professional
duty to refrain from speaking about certain matters,
while privilege is a relief from the duty to speak in
court proceedings.
Catharina J.H. Dubbelday, Comment, The Psychotherapist-Client
Testimonial Privilege: Defining the Professional Involved, 34
Emory L.J. 777, 780-81 (1985) (quotation marks and footnotes
omitted).
C. THE COURT OF APPEALS IMPROPERLY RELIED ON RITCHIE WHEN IT
INVENTED A RIGHT TO ACCESS PRIVILEGED INFORMATION VIA A MOTION
FOR IN CAMERA REVIEW.
¶20 Since much of this case revolves around the Supreme
Court of the United State's decision in Ritchie, we begin by
reviewing its facts and holding. We then discuss the court of
appeals' treatment of Ritchie in the two cases leading up to
Shiffra as well as Shiffra.
1. The Original In Camera Review Case: Pennsylvania v. Ritchie.
¶21 In Ritchie, the Supreme Court addressed whether and to
what extent a state's interest in the confidentiality of its
investigative files concerning child abuse must yield to a
criminal defendant's Sixth and Fourteenth Amendment rights.
Ritchie, 480 U.S. at 42-43. In that case, Pennsylvania created
18
No. 2011AP2680-CR
"a protective service agency charged with investigating cases of
suspected mistreatment and neglect."16 Id. at 43 (emphasis
added). The defendant was charged with "rape, involuntary
deviant sexual intercourse, incest, and the corruption of a
minor." Id. The alleged victim of those charges was the
defendant's thirteen-year-old daughter. Id. The daughter claimed
that she had been assaulted by the defendant two or three times
per week over a four year period. Id. After reporting the
incidents to the police, the case was referred to the protective
agency. Id.
¶22 Prior to trial, the defendant served the protective
agency with a subpoena; he sought access to the agency's records
concerning his daughter. Id. The protective agency refused to
turn over the records, claiming that the records were protected
from disclosure under Pennsylvania law. Id. The relevant
Pennsylvania statute provided,
reports made pursuant to this act including but not
limited to report summaries of child abuse . . . and
written reports . . . as well as any other information
obtained, reports written or photographs or x-rays
taken concerning alleged instances of child abuse in
the possession of the department, a county children
and youth social service agency or a child protective
service shall be confidential and shall only be made
available to:
. . . .
(5) A court of competent jurisdiction pursuant to a
court order.
16
The protective agency was called "Children and Youth
Services" ("CYS").
19
No. 2011AP2680-CR
Id. at n.2 (first two alterations in original) (emphasis added);
see also id. at 43-44. To summarize, the statute required that
all reports and information obtained in the course of a
protective agency's investigation be kept confidential unless a
court ordered disclosure.
¶23 The defendant in Ritchie argued that he was entitled
to the confidential information because it might contain the
names of favorable witnesses as well as exculpatory information.
See id. at 55. Moreover, he claimed that the protective agency's
refusal to disclose the confidential information violated his
constitutional rights, specifically his Sixth Amendment rights
to Confrontation and Compulsory Process and his Fourteenth
Amendment right to Due Process. See id. at 51-52, 55-56, 57-58.
The Court rejected the defendant's arguments under the Sixth
Amendment and instead addressed his arguments under the
Fourteenth Amendment. Id. at 56 ("[B]ecause our Fourteenth
Amendment precedents addressing the fundamental fairness of
trials establish a clear framework for review, we adopt a due
process analysis for purposes of this case.").
¶24 In conducting its due process analysis, the Court
relied exclusively on Brady v. Maryland, 373 U.S. 83 (1963), the
case that first established a prosecutor's disclosure
obligation, and cases that clarify Brady. Indeed, the first
sentence of the Court's due process analysis reads, "It is
well[-]settled that the government has the obligation to turn
over evidence in its possession that is both favorable to the
accused and material to guilt or punishment." Id. at 57
20
No. 2011AP2680-CR
(emphasis added). The Court then cited to Brady and United
States v. Agurs, 427 U.S. 97 (1976), a case that clarified
Brady's reach. Id. In fact, the only law cited in the Court's
due process analysis stems directly from Brady. Id. at 57-58.
¶25 Brady requires, as a prerequisite to disclosure, that
the information sought by the defendant be (1) in the
prosecutor's possession and (2) both favorable to the accused
and material to guilt or punishment. 373 U.S. at 87; see also
Ritchie, 480 U.S. at 57. The Ritchie Court readily concluded
that the first Brady requirement——that the information be in the
prosecutor's possession——was met, so it dove straight into the
second requirement——that the information be favorable to the
accused and material to guilt or punishment. Ritchie, 480 U.S.
at 57. It is clear the Ritchie Court assumed that Brady's
disclosure requirement applied to a state agency involved in
investigating the allegations as part of the prosecutorial state
function because the Court made quick-work of that requirement.
In contrast, the Court grappled with Brady's materiality
requirement:
At this stage, of course, it is impossible to say
whether any information in the [protective agency's]
records may be relevant to [the defendant's] claim of
innocence, because neither the prosecution nor defense
counsel have seen the information, and the trial judge
acknowledged that he had not reviewed the full file.
The Commonwealth, however, argues that no materiality
inquiry is required, because a statute renders the
contents of the file [confidential]. Requiring
disclosure here, it is argued, would override the
Commonwealth's compelling interest in confidentiality
on the mere speculation that the file "might" have
been useful to the defense.
21
No. 2011AP2680-CR
Id. (emphasis added).
¶26 In considering how Brady's materiality standard should
apply to speculative, protected information, the Court balanced
the defendant's interest in the information against the State's
interest in protecting the information:
Although we recognize that the public interest in
protecting this type of sensitive information is
strong, we do not agree that this interest necessarily
prevents disclosure in all circumstances. This is not
a case where a state statute grants [the protective
agency] the absolute authority to shield its files
from all eyes. Rather, the [state] law provides that
the information shall be disclosed in certain
circumstances, including when [the protective agency]
is directed to do so by court order. Given that the
[state] Legislature contemplated some use of [the
protective agency's] records in judicial proceedings,
we cannot conclude that the statute prevents all
disclosure in criminal prosecutions. In the absence of
any apparent state policy to the contrary, we
therefore have no reason to believe that relevant
information would not be disclosed when a court of
competent jurisdiction determines that the information
is "material" to the defense of the accused.
Id. at 57-58 (emphases added) (citation omitted). Accordingly,
the Ritchie Court held that the defendant was entitled to have
the protective agency's investigative file reviewed in camera,
remarking that if the files "contain[ed] information that
probably would have changed the outcome of his trial," then
"[the defendant] must be given a new trial." Id. at 58. Thus,
the point of the in camera review was to determine whether the
files met Brady's second requirement——materiality.
¶27 In sum, there are two key takeaway points from
Ritchie. First, Ritchie involved a state statute that made the
22
No. 2011AP2680-CR
protective agency's investigative files confidential. But the
statute specifically allowed for disclosure per a court order.
The Court leaned heavily on this fact in reaching its
conclusion, commenting, "the [state] law provides that the
information shall be disclosed in certain circumstances,
including when [the agency] is directed to do so by court
order." Id. at 57-58.
¶28 Second, the protective agency, the entity holding the
records, was responsible for "investigating cases of suspected
mistreatment and neglect," including the allegations made
against the defendant in that case. Id. 42-43. The Ritchie Court
considered the "investigative" status of the protective agency
important because it cited exclusively to Brady and post-Brady
cases, which require the prosecutor to turn over files in his or
her possession. The Ritchie Court's actions (summarily skipping
over this requirement) demonstrate that the protective agency
met Brady's possession requirement because the protective agency
performed state investigative and prosecutorial functions.
¶29 And this conclusion makes sense. Since Brady, the
Court has held that the prosecutor's Brady obligation extends to
"others acting on the government's behalf in the case, including
the police." See Kyles v. Whitley, 514 U.S. 419, 437 (1995)
("[T]he individual prosecutor has a duty to learn of any
favorable evidence known to the others acting on the
government's behalf in the case, including the police."
(emphasis added)); Strickler v. Greene, 527 U.S. 263, 281 (1999)
("In order to comply with Brady, therefore, 'the individual
23
No. 2011AP2680-CR
prosecutor has a duty to learn of any favorable evidence known
to the others acting on the government's behalf in this case,
including the police.'" (citing Kyles, 514 U.S. at 437)). In
Ritchie, the state statute charged the relevant protective
agency with "investigating cases of suspected mistreatment and
neglect." 480 U.S. at 43. There, in particular, the defendant's
case was "referred" to the protective agency. Id. In short, it
made sense for the Supreme Court to rely on Brady and post-Brady
cases in Ritchie because the protective agency was charged with
investigating the allegations and was, therefore, acting on the
prosecution's behalf. As a result, any material it had was
constructively within the possession of the prosecution.
2. Our Court of Appeals Gradual Expansion of Ritchie: In the
Interest of K.K.C., State v. S.H., and State v. Shiffra.
¶30 Nearly one year after the Supreme Court of the United
States decided Ritchie, our court of appeals took up In the
Interest of K.K.C., 143 Wis. 2d 508, 422 N.W.2d 142 (Ct. App.
1988). The court reached the following conclusion regarding
Ritchie:
[The defendant] contends that if the trial judge in
his criminal case does not review the agency's files,
he will be denied his constitutional rights to
confrontation, compulsory process, and due process.
Ritchie holds that a criminal defendant is entitled to
an in camera review by the trial court of confidential
records if those records are material to the
defendant's defense.
[The defendant] has not moved the trial court in his
criminal case to make an in camera review of the
agency records. If he does so, Ritchie, supra,
establishes that he is entitled to such a review by
24
No. 2011AP2680-CR
the trial court, provided he makes a preliminary
showing that the files contain evidence material to
his defense.
In the Interest of K.K.C., 143 Wis. 2d 508, 511, 422 N.W.2d 142
(Ct. App. 1988) (citations omitted). That's the court's entire
Ritchie analysis.
¶31 The statute in K.K.C., Wis. Stat. § 48.78(2)(a),
provided, "No agency may make available for inspection or
disclose the contents of any record kept or information received
about any individual in its care or legal custody, except as
provided [under other subsections] or by order of the court."
Id. at 509-10. Similar to the statute in Ritchie, § 48.78(2)(a)
carved out a court order exception. However, unlike in Ritchie,
it is unclear whether the County Department of Social Services
was "investigating" or "acting on the government's behalf" by
assisting the prosecution.
¶32 Two years later, the court of appeals decided State v.
S.H., 159 Wis. 2d 730, 465 N.W.2d 238 (Ct. App. 1990). There,
the court once again interpreted Ritchie, this time broadly
expanding Ritchie's reach. In S.H., the State charged the
defendant with twelve counts of first-degree sexual assault.
State v. S.H., 159 Wis. 2d 730, 733, 465 N.W.2d 238 (Ct. App.
1990). The alleged victims of those charges were the defendant's
three children. Id. Prior to trial, the defendant sought a court
order directing the children's counseling center (Directions
Counseling Center) to provide him with copies of the children's
treatment records. Id. at 734. The counseling center refused to
release the records after the children's guardian ad litem
25
No. 2011AP2680-CR
claimed the psychologist-patient privilege (Wis. Stat. § 905.04)
on behalf of the children. Id. The court of appeals, citing
Ritchie and K.K.C., concluded that "if a defendant makes a
preliminary showing that the records contain evidence material
to his defense, he is entitled to an in camera review by the
trial court of those records." Id. at 738. Here is the court of
appeals' analysis and application of Ritchie:
[Ritchie] controls S.H.'s constitutional right to
compel disclosure of confidential records. That
[C]ourt conducted a due process analysis and concluded
that the defendant was entitled to an in camera review
by the trial court of confidential records. In
Ritchie, the Court struck a balance between the
protection of confidential information and the
defendant's interest in obtaining exculpatory
information. The Court recognized that an in camera
review denied the defendant the benefit of an
"advocate's eye." However, such review adequately
protected the defendant's rights while protecting the
confidentiality of the records. Accordingly, if a
defendant makes a preliminary showing that the records
contain evidence material to his defense, he is
entitled to an in camera review by the trial court of
those records.
Id. at 737-38 (citations omitted). The court of appeals left out
some of Ritchie's crucial features.
¶33 For example, unlike in Ritchie and K.K.C., where the
records sought were confidential, the records sought in S.H.
were privileged under Wis. Stat. § 905.04. Moreover, unlike the
statutes in Ritchie and K.K.C., § 905.04 does not contain an
exception allowing for release by court order.
¶34 Additionally, in S.H., a private mental health
facility, Directions Counseling Center, held the privileged
26
No. 2011AP2680-CR
records. Id. at 733-34. Unlike the protective agency in Ritchie,
no facts in the court of appeals' opinion would suggest that
Directions Counseling Center was involved in "investigating" the
sexual assault allegations or was in any way acting on behalf of
the prosecutor. In reaching its conclusion, the court of appeals
failed to take notice of these important distinguishing
features. Instead, the court incorrectly interpreted Ritchie to
mean "that the defendant was entitled to an in camera review by
the trial court of confidential records." Id. at 737-38.
¶35 Almost three years later, the court of appeals
considered State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719
(Ct. App. 1993). In Shiffra, the state charged the defendant
with second-degree sexual assault. 175 Wis. 2d at 602. Prior to
trial, the defendant moved for an order requiring the
complainant to reveal to the defendant her "psychiatric history,
psychiatric records, and to execute an authorization to release
medical information from any doctors, hospitals or counselors
seen by [the complainant] . . . ." Id. at 603. The State opposed
the motion, arguing that the complainant's records were
privileged under Wis. Stat. § 905.04. Despite the State's
argument that "th[e] case d[id] not fall within the ambit of
Ritchie because [the complainant's] records [were] not in the
possession of the prosecution or any other state agency," the
court concluded,
We are bound by Wisconsin precedent, which clearly
makes Ritchie applicable to cases in which the
information sought by the defense is protected by
statute and is not in the possession of the state. See
27
No. 2011AP2680-CR
K.K.C., 143 Wis. 2d at 511, 422 N.W.2d at 144
(information sought was confidential); S.H., 159
Wis. 2d at 736, 465 N.W.2d at 240-41 (information
sought was protected under sec. 905.04, Stats., and
was in the possession of a private counseling center).
According to these cases, Shiffra is entitled to an in
camera inspection if he meets the burden of making a
preliminary showing of materiality. The State contends
that S.H. and K.K.C. are not binding because their
relevant language is dicta. We do not agree. Both
cases unequivocally adopted Ritchie as the law in
Wisconsin even when the records are not in the state's
possession.
Id. at 606-07.
¶36 To say the court of appeals took some liberties
interpreting and applying Ritchie would be an understatement.
Over the course of three cases, K.K.C., S.H., and Shiffra, the
court of appeals swept into Ritchie's reach privileged records
held by entities completely removed from the investigative
criminal process. Ritchie——a case concerning confidential
records (subject to numerous exceptions) held by the very agency
charged with investigating the offense and therefore soundly
rooted in Brady——never should have been stretched to cover
privileged records held by agencies far removed from
investigative and prosecutorial functions. As a result, we
conclude that the court of appeals improperly relied on Ritchie
when it created a right to access privileged information that is
not in the prosecutor's hands via a motion for in camera review.
3. This Court's Adoption of Shiffra.
¶37 This court appears to have first "adopted" the court
of appeals' Shiffra test in State v. Solberg, 211 Wis. 2d 372,
564 N.W.2d 775 (1997). We use the term "adopted" loosely because
28
No. 2011AP2680-CR
the Solberg court simply parroted Shiffra's test and then cited
Shiffra:
Whether the court of appeals had the authority to
examine E.H's records is dependent on whether the
circuit court appropriately conducted an in camera
inspection of the records. If the circuit court had
the authority to review the privileged records, then
the court of appeals also had the authority to do so.
A circuit court should conduct an in camera review of
privileged medical records when the defendant makes "a
preliminary showing that the sought-after evidence is
material to his or her defense," and the privilege
holder consents to review of those records.
State v. Solberg, 211 Wis. 2d 372, ¶16, 564 N.W.2d 775 (1997)
(footnote omitted) (quoting Shiffra, 175 Wis. 2d at 605). The
Solberg court's singular string of reasoning for such a rule was
its "belie[f] that giving the defendant an opportunity to have
the circuit court conduct an in camera review of the privileged
records, while still allowing the patient to preclude review,
addresse[d] both the interests of the defendant and the
patient." Id., ¶23. In essence, Shiffra seemed fair enough to
the Solberg court.
¶38 We also considered Shiffra in State v. Rizzo, 2002 WI
20, 250 Wis. 2d 407, 640 N.W.2d 93. Similar to the court in
Solberg, the Rizzo court applied Shiffra without any analysis of
Shiffra or its foundation. Here is the Rizzo court's application
of Shiffra:
We do no 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
29
No. 2011AP2680-CR
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.
State v. Rizzo, 2002 WI 20, ¶53, 250 Wis. 2d 407, 640 N.W.2d 93
(citing Shiffra, 175 Wis. 2d at 609-10).
¶39 Finally, in State v. Green, this court modified
Shiffra's standard for obtaining an in camera review. The Green
court's consideration of whether Shiffra was good law is as
follows:
The State contends that the holding in [Shiffra] was
in error because it relied on [Ritchie]. The State
argues that Ritchie was distinguishable and therefore
inapplicable because it involved a situation, unlike
here, where the records were in the government's
possession. The Shiffra court, however, specifically
rejected this argument, concluding that it was bound
by Wisconsin precedent, which clearly made Ritchie
applicable in cases where the information sought by
the defense is not in the possession of the state.
Shiffra, 175 Wis. 2d at 606-07, 499 N.W.2d 719 (citing
State v. S.H., 159 Wis. 2d 730, 736, 465 N.W.2d 238
(Ct. App. 1990), and In re K.K.C., 143 Wis. 2d 508,
511, 422 N.W.2d 142 (Ct. App. 1988)). This court
recognized the validity of Shiffra in [Solberg] and
[Rizzo]. We will not depart from this precedent.
Green, 253 Wis. 2d 356, ¶21 n.4.17 To put it bluntly, Shiffra
17
The dissent repeatedly uses this footnote in Green to
proclaim that we have expressly declined to overrule Shiffra.
See Justice Ziegler's dissent, ¶190; see also Justice Prosser's
dissent, ¶167. In reality, this footnote shows that courts have
continued to blindly adhere to poorly reasoned cases solely
because they have felt compelled to do so. Any one of these
courts along the way could have at least attempted to address
the State and answer the question of whether a defendant has a
constitutional right to access privileged information, and if
so, what the basis of that right is. None did. We cannot
continue to pass the buck. We must roll up our sleeves and dig
(continued)
30
No. 2011AP2680-CR
kept the balancing test invented by the court of appeals in S.H.
and K.K.C. because it felt "bound by precedent," and this court
kept Shiffra because Solberg and Rizzo appeared to apply it.
This is the untenable foundation upon which Shiffra was built
and now rests. We will not rubber stamp the Shiffra test solely
because it has been inexplicably applied.18
into the law. Interpreting the Constitution is, after all, the
ultimate responsibility of this court. See Powell v. McCormack,
395 U.S. 486, 521 (1969).
18
The dissent relies on Kimble v. Marvel Entertainment,
LLC, 576 U.S. __, 135 S. Ct. 2401 (2015) for the proposition
that "an argument that we got something wrong——even a good
argument to that effect——cannot by itself justify scrapping
settled precedent." Justice Ziegler's dissent, ¶208. Kimble is a
statutory interpretation case. Accordingly, in Kimble, the
Supreme Court of the United States discussed stare decisis in
the context of statutory interpretation:
What is more, stare decisis carries enhanced force
when a decision . . . interprets a statute. Then,
unlike in a constitutional case, critics of our ruling
can take their objections across the street, and
Congress can correct any mistake it sees. . . . All of
interpretive decisions, in whatever way reasoned,
effectively become part of the statutory scheme,
subject (just like the rest) to congressional changes.
Absent special justification, they are balls tossed
into Congress's court, for acceptance or not as that
branch elects.
Kimble v. Marvel Entm't, LLC, 576 U.S. __, 135 S. Ct. 2401, 2409
(2015) (emphasis added).
Even Kimble's "general" discussion of the law speaks to
stare decisis in the context of statutory interpretation, as it
cites to Justice Brandeis's dissent in Burnet v. Coronado Oil &
Gas Co., 285 U.S. 393 (1932). Burnet explains,
Stare decisis is usually the wise policy, because in
most matters it is more important that the applicable
(continued)
31
No. 2011AP2680-CR
rule of law be settled than that it be settled right.
This is commonly true even where the error is a matter
of serious concern, provided correction can be had by
legislation. But in cases involving the Federal
Constitution, where correction through legislative
action is practically impossible, this court has often
overruled its earlier decisions. The court bows to the
lessons of experience and the force of better
reasoning . . . .
Id., 285 U.S. at 406-08 (Brandeis, J., dissenting) (citations
omitted).
It is important to recognize the distinction between
statutory interpretation and constitutional interpretation. As
noted by the Supreme Court, "unlike in a constitutional case,"
critics of a statutory interpretation case can take their
objections to the Legislature, and it can then can "correct any
mistake it sees." Id. (emphasis added); see also Planned
Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 954-55 (1992)
(Rehnquist, C.J., concurring in part, dissenting in part)
("Erroneous decisions in [] constitutional cases are uniquely
durable, because correction through legislative action, save for
constitutional amendment, is impossible. It is therefore our
duty to reconsider constitutional interpretations that depart
from a proper understanding of the Constitution." (quotation
marks and citations omitted)). In declaring that a defendant has
a constitutional right in this case, the dissenters remove the
issue from public discussion and legislative action. See
Obergefell v. Hodges, 576 U.S. __, 135 S. Ct. 2584, 2625 (2015)
(Roberts, C.J., dissenting) ("By deciding this question under
the Constitution, the Court removes it from the realm of
democratic decision. There will be consequences to shutting down
the political process on an issue of such profound public
significance. Closing debates tends to close minds.").
Moreover, the Supreme Court of the United States has
overruled precedent when the precedential case was "badly
reasoned." See Payne v. Tennessee, 501 U.S. 808, 827 (1991)
([W]hen governing decisions are unworkable or badly reasoned,
'this court has never felt constrained to follow precedent.'"
(citing Smith v. Allwright, 321 U.S. 649, 665 (1944) (emphasis
added))); Arizona v. Gant, 556 U.S. 332, 348 (2009) ("The
doctrine of stare decisis is of course 'essential to the respect
accorded to the judgments of the Court and to the stability of
the law,' but it does not compel us to follow a past decision
(continued)
32
No. 2011AP2680-CR
We therefore undertake to consider whether there is any legal
basis in which Shiffra can properly be grounded.19
D. NEITHER THE SIXTH AMENDMENT NOR THE FOURTEENTH AMENDMENT
GUARANTEE A DEFENDANT THE RIGHT TO ACCESS PRIVILEGED INFORMATION
VIA A MOTION FOR IN CAMERA REVIEW.
¶40 We turn now to discuss whether there is any other
legal basis for creating a right to access privileged
when its rationale no longer withstands 'careful analysis.'"
(emphasis added) (quoting Lawrence v. Texas, 539 U.S. 558, 577
(2003)); Gant, 556 U.S. at 353 (Scalia, J., concurring)
("Justice Alito insists that the Court must demand a good reason
for abandoning prior precedent. That is true enough, but its
seems to me ample reason that the precedent was badly reasoned
and produces erroneous (in this case unconstitutional)
results."); Montejo v. Louisiana, 556 U.S. 778, 792-73
(commenting that "[b]eyond workability, the relevant factors in
deciding whether to adhere to the principle of stare decisis
include the antiquity of the precedent, the reliance interests
at stake, and of course whether the decision was well reasoned,"
and noting that the precedential opinion there was "only two
decades old" so "eliminating it would not upset expectations")
(emphasis added)); see Citizens United v. Fed. Election Comm'n,
558 U.S. 310, 378 (2010) (Roberts, C.J., concurring) ("When
considering whether to reexamine a prior erroneous holding, we
must balance the importance of having constitutional questions
decided against the importance of having them decided right.").
19
In case this point has not been made abundantly clear in
the 15 pages detailing the countless inadequacies of
Shiffra/Green, Shiffra/Green was wrongly decided, is unsound in
principle, and should, therefore, be overruled. See Johnson
Controls, Inc. v. Emp'rs Ins. of Wausau, 2003 WI 108, ¶¶98-99,
264 Wis. 2d 60, 665 N.W.2d 257 (overruling precedent and
outlining a series of concerns a court should consider when
overturning prior case law, including "whether the prior case
was correctly decided," and "whether the prior decision is
unsound in principle"); see also id., ¶100 ("We do more damage
to the rule of law by obstinately refusing to admit errors,
thereby perpetuating injustice, than by overturning an erroneous
decision.").
33
No. 2011AP2680-CR
information via a motion for in camera review. An analysis of
other cases tackling this topic reveals that defendants have
consistently argued that three constitutional provisions——the
Sixth Amendment's Confrontation Clause and Compulsory Process
Clause and the Fourteenth Amendment's Due Process Clause——give
rise to a right to access privileged information via a motion
for in camera review. See, e.g., Indiana v. Fromme, 949 N.E.2d
789, 795 (Ind. 2011). Each provision will be discussed in turn
below.
1. The Sixth Amendment's Confrontation Clause.
¶41 The United States Constitution provides, "In all
criminal prosecutions the accused shall enjoy the right . . . to
be confronted with witnesses against him . . . ." U.S. Const.
amend. VI.20 The Supreme Court of the United States has
explained, "The Confrontation Clause provides two types of
protections for a criminal defendant: the right physically to
face those who testify against him, and the right to conduct
cross-examination. Ritchie, 480 U.S. at 51 (plurality opinion).21
¶42 A plurality of the Supreme Court has specifically
considered——and rejected——the argument that "by denying [a
20
The Wisconsin Constitution provides, "In all criminal
prosecutions the accused shall enjoy the right . . . to meet
witnesses face to face . . . ." Wis. Const. art. I, § 7.
21
Justice Powell's discussion of the Confrontation Clause
in Ritchie garnered a plurality of the Court. 480 U.S. at 42.
Justice Powell's discussion of the Compulsory Process Clause and
the Due Process Clause garnered a majority of the Court. Id.
34
No. 2011AP2680-CR
defendant] access to the information necessary to prepare his
defense, the trial court interfered with [a defendant's] right
of cross-examination." Id. In Ritchie, the Court commented on
the limited nature of a defendant's right to cross-examination:
"The ability to question adverse witnesses, however, does not
include the power to require the pretrial disclosure of any and
all information that might be useful in contradicting
unfavorable testimony." Id. at 53. Moreover, the Court went on
to add, "If we were to accept this broad interpretation . . . ,
the effect would be to transform the Confrontation Clause into a
constitutionally compelled rule of pretrial discovery. Nothing
in the case law supports such a view. The opinions of this Court
show that the right to confrontation is a trial right . . . ."
Id. at 52 (first emphasis added). Thus, the right to cross
examine witnesses is satisfied when "defense counsel receives
wide latitude at trial to question witnesses." Id. at 53 n.9
("[T]he Confrontation Clause only protects a defendant's trial
rights[; it] does not compel the pretrial production of
information that might be useful in preparing for trial.").
¶43 Similar to the defendant in Ritchie, Lynch's argument
would be that the court interfered with his ability to most
effectively cross examine the complainant by denying him access
to the complainant's privileged mental health treatment records.
A plurality of the Supreme Court has already rejected this
argument, and we reject this argument now. Lynch's right to
cross examination will be satisfied so long as he has the
opportunity to cross examine the complainant at trial.
35
No. 2011AP2680-CR
2. The Sixth Amendment's Compulsory Process Clause.
¶44 The United States Constitution provides, "In all
criminal prosecutions the accused shall enjoy the right . . . to
have compulsory process for obtaining witnesses in his favor."
U.S. Const. amend. VI.22 The Supreme Court of the United States
has explained that the Compulsory Process Clause grants a
defendant the "right to offer the testimony of witnesses, and to
compel their attendance, if necessary . . . ." Washington v.
Texas, 388 U.S. 14, 19 (1967); see also Ritchie, 480 U.S. at 56
(majority opinion) ("Our cases establish, at a minimum, that
criminal defendants have the right to the government's
assistance in compelling the attendance of favorable witnesses
at trial and the right to put before a jury evidence that might
influence the determination of guilt." (emphasis added)).
¶45 In State v. Schaefer, 2008 WI 25, 308 Wis. 2d 279, 746
N.W.2d 457, we analyzed the Ritchie Court's treatment of the
Compulsory Process Clause, specifically taking notice of the
Supreme Court's "reluctan[ce] to establish an unconditional
discovery right under the Sixth Amendment." Id., ¶66. In
Ritchie, the Court reiterated that it "has never squarely held
that the Compulsory Process Clause guarantees the right to
discover the identity of witnesses, or to require the government
to produce exculpatory evidence." Ritchie, 480 U.S. at 56
22
The Wisconsin Constitution provides, "In all criminal
prosecutions the accused shall enjoy the right . . . to have
compulsory process to compel the attendance of witnesses in his
behalf . . . ." Wis. Const. art. I, § 7.
36
No. 2011AP2680-CR
(emphasis omitted). Consequently, the Court chose to forego a
Sixth Amendment analysis and instead opted for a Fourteenth
Amendment Due Process analysis. Id. It explained, "Although we
conclude that compulsory process provides no greater protections
in this area than those afforded by due process, we need not
decide today whether and how the guarantees of the Compulsory
Process Clause differ from those of the Fourteenth Amendment."
Id. In Schaefer, we interpreted the Court's statement in Ritchie
to mean that "unless due process required defense access to
specific evidence, the Compulsory Process Clause cannot provide
substitute authority for such access." Schaefer, 308
Wis. 2d 279, ¶66. Following the Supreme Court's lead, we move on
to consider whether the Due Process Clause guarantees a
defendant the right to access privileged information via a
motion for in camera review.23
23
For a discussion on the interplay between the Compulsory
Process Clause and the Due Process Clause, see Stacey Kime,
Note, Can A Right Be Less Than The Sum Of Its Parts? How The
Conflation Of Compulsory Process and Due Process Guarantees
Diminished Criminal Defendants Rights, 48 Am. Crim. L. Rev. 1501
(2011) and Sanjay Chhablani, Disentangling The Sixth Amendment,
U. Pa. J. Const. L. 487, 523-29 (2009). Both law review articles
advocate for a separation of the two constitutional provisions:
"The rights under the Compulsory Process Clause provide the
structure for a fair trial . . . while the Due Process Clause
governs the fairness of the trial itself . . . ." Stacey Kime,
Note, Can A Right Be Less Than The Sum Of Its Parts? How The
Conflation Of Compulsory Process and Due Process Guarantees
Diminished Criminal Defendants Rights, 48 Am. Crim. L. Rev.
1501, 1524 (2011); see also Sanjay Chhablani, Disentangling The
Sixth Amendment, U. Pa. J. Const. L. 487, 527-28 (2009)
("[W]hile the Compulsory Process Clause gives defendants the
right to the issuance of subpoenas for compelling a witness's
attendance in court, once that witness shows up, it is the Due
(continued)
37
No. 2011AP2680-CR
3. The Fourteenth Amendment's Due Process Clause.
¶46 The United States Constitution provides, "No State
shall . . . deprive any person of life, liberty or property,
without due process of law . . . ." U.S. Const. amend. XIV.24 Due
Process requires that criminal prosecutions comport with
"prevailing notions of fundamental fairness." California v.
Trombetta, 467 U.S. 479, 485 (1984). Fundamental fairness
necessitates that "criminal defendants be afforded a meaningful
opportunity to present a complete defense." Id. However, the
right to present a complete defense has never been interpreted
to include a general right to access (or discover) information
in a criminal case. To the contrary, the Supreme Court has
consistently recognized that "there is no general constitutional
right to discovery in a criminal case . . . ." Ritchie, 480 U.S.
at 59-60 (quoting Weatherford v. Bursey, 429 U.S. 545, 559
(1977)).
¶47 We too have held that there is no general
constitutional right to access information in criminal cases.
See State v. Miller, 35 Wis. 2d 454, 151 N.W.2d 157 (1967); see
also Britton v. State, 44 Wis. 2d 109, 170 N.W.2d 785 (1969)
Process Clause that addresses whether the witness will be
allowed to testify.").
24
The Wisconsin Constitution provides, "All people are born
equally free and independent, and have certain inherent rights;
among these are life, liberty, and the pursuit of happiness; to
secure these rights, governments are instituted, deriving their
just powers from the consent of the governed." Wis. Const. art.
I, § 1.
38
No. 2011AP2680-CR
("Discovery has been left to rule-making power and has not been
deemed a constitutional issue."). Accordingly, a defendant is
entitled to access information only to the extent outlined in
Wis. Stat. § 971.23, our criminal discovery statute. Schaefer,
398 Wis. 2d 279, ¶77 n.17 ("[T]he scope of discoverable
materials is set out in statute and compliance with the statute
will be enforced by the court."); see also Miller, 35 Wis. 2d at
474 ("[I]t has been held that unless introduced by appropriate
legislation, the doctrine of discovery is a complete and utter
stranger to criminal procedure." (quoting 23 C.J.S. Criminal Law
§ 955(1), p. 787)).25
¶48 Of course, "[s]tatutory discovery is conceptually
distinct from the prosecution's constitutionally-mandated duty
to disclose exculpatory evidence" under Brady. 9 Wis. Prac.,
Criminal Practice & Procedure § 22:1 (2d ed.); see also Miller,
25
Of course, the Supreme Court of the United States could
decide to create a due process right to access privileged
information, in which case, we would naturally follow the
Supreme Court's directive. To date, the Supreme Court has not
recognized a due process right to access privileged information.
See California v. Trombetta, 467 U.S. 479, 486 (explaining that
the Court has allowed some access to information when a
prosecutor uses his or her "sovereign powers" to "hamper" a
defendant's trial, but purposely leaving open the question of
whether "the Due Process Clause . . . guarantee[s] criminal
defendants access to exculpatory evidence beyond the
government's possession" (emphasis added)); see also People v.
Hammon, 938 P.2d 986 (Cal. 1997) ("We do not, however, see an
adequate justification for taking such a long step in a
direction the United States Supreme Court has not gone.").
39
No. 2011AP2680-CR
35 Wis. 2d at 474-78; Britton, 44 Wis. 2d at 117-18; Schaefer,
308 Wis. 2d 279, ¶¶22-23. In Britton, we explained,
A distinction must be made between "disclosure" and
"discovery." Discovery emphasizes the right of the
defense to obtain access to evidence necessary to
prepare its own case, while disclosure concerns itself
with the duty of the prosecution to make available to
the accused evidence and testimony which, as a minimum
standard, is exculpatory based on constitutional
standards of due process. Discovery has been left to
rule-making power and has not been deemed a
constitutional issue. On the other hand, disclosure,
or the failure to disclose, is a constitutional issue
to be decided on a case by case basis . . . .
Britton, 44 Wis. 2d at 117-18 (emphasis added).
¶49 A prosecutor's constitutionally-mandated duty to
disclose arises out of the Supreme Court of the United State's
decision in Brady. In Brady, the Court held that "the
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the
good faith or bad faith of the prosecution." 373 U.S. at 87
(emphasis added). The Court reasoned, "A prosecution that
withholds evidence on demand of an accused which, if made
available, would tend to exculpate him or reduce the penalty
helps shape a trial that bears heavily on the defendant. That
casts the prosecutor in the role of an architect of a proceeding
that does not comport with standards of justice . . . ." Id. at
87-88 (emphasis added). Stated otherwise, a defendant is treated
unfairly when a prosecutor hides favorable evidence from a
defendant.
40
No. 2011AP2680-CR
¶50 The Supreme Court of the United States has
consistently limited Brady's disclosure requirement to the
prosecutor and to others acting on the prosecutor's behalf. See
Kyles, 514 U.S. at 437 ("[T]he individual prosecutor has a duty
to learn of any favorable evidence known to the others acting on
the government's behalf in the case, including the police."
(emphasis added)); Strickler, 527 U.S. at 281 ("In order to
comply with Brady, therefore, 'the individual prosecutor has a
duty to learn of any favorable evidence known to others acting
on the government's behalf in this case, including the police.'"
(citing Kyles, 514 U.S. at 437)). For example, in Pitonyak v.
Stephens, 732 F.3d 525 (5th Cir. 2013), the Fifth Circuit,
recognizing Brady's limitation, held that the prosecution's
Brady requirement did not extend to "a jail counselor" because
the counselor was "not involved in investigating or preparing
the case against [the defendant]." Id. at 531, 533.
¶51 And in Illinois v. C.J., 652 N.E.2d 315 (Ill. 1995),
the Supreme Court of Illinois held that "where [the Division of
Child Family Services] acts at the behest of and in tandem with
the State's Attorney, with the intent and purpose of assisting
the prosecutorial effort, DCFS functions as an agent of the
prosecution," and is therefore subject to Brady's disclosure
requirement. Id. at 318. However, because "there was no evidence
to support the conclusion that the DCFS investigator [there]
functioned, intentionally or otherwise, as an aid in the
prosecution of the case," the prosecutor's Brady requirement did
not extend to that particular DCFS agent. Id.
41
No. 2011AP2680-CR
¶52 For comparison, in Commonwealth v. Bing Sial Liang,
747 N.E.2d 112 (Mass. 2001), the Supreme Judicial Court of
Massachusetts held that a victim advocate's notes fell within
the prosecutor's Brady requirement because "[a]dvocates are
included in the statute's definition of 'prosecutor' and
generally are employees of the prosecution." Id. at 116. The
Court went on to say, "advocates are paid by the various
district attorney[s'] offices [and] work closely with the
prosecutors developing cases.' Clearly the Legislature views
advocates as part of the prosecution team." Id. (alterations in
original) (citations omitted).
¶53 Notably, both the Seventh and Eighth Circuits have
rejected defendants' attempts to subpoena treatment records in
preparation for trial despite the defendants' assertions that
withholding the information would deprive them of a fair trial.
United States v. Hach, 162 F.3d 937 (7th Cir. 1998); United
States v. Skorniak, 59 F.3d 750 (8th Cir. 1995). In Hach, the
defendant sought a witness's "medical and psychiatric records
for purposes of conducting an in camera review, and ultimately
to release them to him for use in cross-examination." 162 F.3d
at 946. In denying the defendant's request, the Seventh Circuit
noted,
[The defendant's] attempt to bootstrap onto Ritchie
suffers from a grave[] problem——the evidence is not
and never was in the government's possession. As the
Eighth Circuit noted in United States v. Skorniak, a
failure to show that the records a defendant seeks are
in the government's possession is fatal to the
defendant's claim. . . . [I]f the documents are not in
42
No. 2011AP2680-CR
the government's possession, there can be no "state
action" and consequently, no violation of [the]
Fourteenth Amendment.
Id. at 947 (emphasis added). Simply, because the records were
not held by the prosecutor or an entity acting on behalf of the
prosecutor, the defendant was not entitled to disclosure of the
records.
¶54 To summarize, a defendant has a right to present a
meaningful defense, but this right is not limitless. It does not
include a constitutional right to access privileged information
via a motion for in camera review. Discovery is purely
statutory; accordingly, a defendant's right to obtain
information is to be found in Wis. Stat. § 971.23. In contrast,
a defendant has a constitutional right, under Brady, to material
information but only when that information is held by the
prosecutor, including others acting on the prosecutor's behalf.
Outside of the prosecution's limited disclosure requirement,
there is no constitutional right to access information.
Weatherford, 429 U.S. at 559 ("There is no general
constitutional right to discovery in a criminal case, and Brady
did not create one.").
¶55 Here, there is nothing to show that the complainant's
private mental health facility was acting on behalf of the
prosecutor. Unlike in Ritchie and Bing Sial Ling, the
complainant's mental health facility was not statutorily created
for the purpose of "investigating" crime. Additionally, there
are no facts in the record that would indicate that the facility
was acting on behalf of or in tandem with the prosecutor.
43
No. 2011AP2680-CR
Consequently, this case does not implicate Brady. In sum, Lynch
has no right to access the complainant's privileged treatment
information via a motion for in camera review because there is
no constitutional right to access information and because the
information does not fall under Brady's limited disclosure
obligation.26
E. EVEN IF THERE WERE A RIGHT TO ACCESS PRIVILEGED INFORMATION
VIA A MOTION FOR IN CAMERA REVIEW, THAT RIGHT WOULD NEED TO BE
BALANCED AGAINST WIS. STAT. § 905.04, THE PRIVILEGE STATUTE.
¶56 We have concluded that a defendant has no Sixth or
Fourteenth Amendment right to access privileged information via
a motion for in camera review. However, even if there were such
a right, that right would still need to be balanced against Wis.
Stat. § 905.04, the privilege statute. We would analogize this
case, which involves access to information, to cases involving
the presentation of evidence at trial. We do so because even if
a defendant cannot gain pre-trial access to information, the
defendant may still seek to present evidence (in the form of the
complainant's testimony) at trial. See Goldsmith v. State, 651
A.2d 866, 874 (Md. 1995) (distinguishing between a defendant's
26
Other states have reached the same conclusion. See, e.g.,
Indiana v. Fromme, 949 N.E.2d 789 (Ind. 2011); People v. Hammon,
938 P.2d 986 (Cal. 1997); Dill v. People, 927 P.2d 1315 (Colo.
1996); State v. Percy, 548 A.2d 408 (Vt. 1988); Commonwealth v.
Wilson, 602 A.2d 1290 (Pa. 1992); United States v. Shrader, 716
F.Supp 2d 464 (S.D. W. Va. 2010); New Jersey v. E.P., 559 A.2d
447 (N.J. Super. Ct. App. Div. 1989) (holding that the defendant
had no right to in camera review of information protected by
attorney-client privilege).
44
No. 2011AP2680-CR
right of access to information during pre-trial discovery and a
defendant's right at trial to present a defense).
¶57 The Supreme Court of the United States has recognized
"the right of the defendant to present evidence." Taylor v.
Illinois, 484 U.S. 400, 409 (1988) (emphasis added). In
Washington v. Texas, 388 U.S. 14 (1967), the Court stated,
The right to offer the testimony of witnesses, and to
compel their attendance, if necessary, is in plain
terms the right to present a defense, the right to
present the defendant's version of the facts as well
as the prosecution's to the jury so it may decide
where the truth lies. Just as an accused has the right
to confront the prosecution's witnesses for the
purpose of challenging their testimony, he has the
right to present his own witnesses to establish a
defense. This right is a fundamental element of due
process of law.
Id. at 19. However, the Court has also recognized that a
defendant "does not have an unfettered right to offer testimony
that is incompetent, privileged, or otherwise inadmissible under
standard rules of evidence." Taylor, 484 U.S. at 410 (emphasis
added). Accordingly, a defendant's right to present evidence
must be balanced against other considerations. See Rock v.
Arkansas, 483 U.S. 44, 55-56 (1987) ("Of course, the right to
present relevant testimony is not without limitation. The right
'may, in appropriate cases, bow to accommodate other legitimate
interests in the criminal trial process.'" (quoting Chambers v.
Mississippi, 410 U.S. 284, 295 (1973)).
45
No. 2011AP2680-CR
¶58 Over a series of cases,27 the Supreme Court has
developed a test for determining when a defendant's right to
present evidence is violated: "[T]he exclusion of defense
evidence abridge[s] an accused's right to present a defense
'where the restriction is arbitrary or disproportionate to the
purposes' [it is] designed to serve, and the evidence
implicate[s] a sufficiently weighty interest of the accused."
Harris v. Thompson, 698 F.3d 609, 626 (7th Cir. 2012)
(alterations in original) (quoting United States v. Scheffer,
523 U.S. 303, 308-09 (1998) (quoting Rock, 483 U.S. at 56)).
¶59 For instance, in Washington v. Texas, the Court struck
down a state statute that barred the introduction of an alleged
accomplice's testimony. In declaring the statute
unconstitutional, the Court called the rule "arbitrary,"
27
See Washington v. Texas, 388 U.S. 14, 22-23 (1967)
(striking down an "arbitrary" law that disqualified an alleged
accomplice from testifying on the behalf of the defendant);
Chambers v. Mississippi, 410 U.S. 284, 296 n.8, 302 (1973)
(striking down a "archaic, irrational, and potentially
destructive" common-law rule that prevented the defendant from
impeaching his own witness); Rock v. Arkansas, 483 U.S. 44, 55,
61 (1987) (applying the arbitrary and disproportionate test, and
striking down a "per se" rule that excluded the defendant's
hypnotically refreshed testimony because the rule "arbitrarily"
excluded material evidence and because the State had not
"justified the exclusion of all of [the] defendant's
testimony"); Taylor v. Illinois, 484 U.S. 400, 414-16 (1988)
(applying the arbitrary and disproportionate test, and upholding
the trial judge's determination that the appropriate sanction
for the defendant's discovery violation was to exclude the
witness's testimony); Holmes v. South Carolina, 547 U.S. 319,
330-31 (2006) (applying the arbitrary and disproportionate test,
and striking down the State's rule barring third-party guilt
evidence).
46
No. 2011AP2680-CR
specifically commenting that "[t]he rule disqualifying an
alleged accomplice from testifying on behalf of the defendant
cannot even be defended on the ground that it rationally sets
apart a group of persons who are particularly likely to commit
perjury." Washington v. Texas, 388 U.S. at 22 (emphasis added).
Accordingly, the Court held that the statute "arbitrarily denied
[the defendant] the right to put on the stand a witness who was
physically and mentally capable of testifying to events that he
had personally observed, and whose testimony would have been
relevant and material to the defense." Id. at 23 (emphasis
added). In a footnote, the Court was careful to clarify that
"[n]othing in [its] opinion should be construed as disapproving
testimonial privileges, . . . which are based on entirely
different considerations . . . ." Id. at 23 n.21.
¶60 Chambers v. Mississippi serves as another example. In
Chambers, the Court analyzed Mississippi's common-law rule that
"a party may not impeach his own witness." 410 U.S. at 295. The
Court evaluated the basis for such a rule: "The rule rests on
the presumption——without regard to the circumstances of the
particular case——that a party who calls a witness 'vouches for
his credibility.'" Id. at 295 (citation omitted). As part of its
analysis, the Court remarked that the rule had been condemned by
other sources as "archaic, irrational, and potentially
destructive of the truth-gathering process." Id. at 296 n.8.
Moreover, the Court took notice of the fact that "Mississippi
ha[d] not sought to defend the rule or explain its rationale.
Nor ha[d] it contended that its rule should override the
47
No. 2011AP2680-CR
accused's right of confrontation." Id. at 297. As a result, the
Court concluded that the State's rule denied the defendant an
opportunity to present a complete defense. Id. at 302-03.
¶61 To summarize, the "mere invocation" of a
constitutional right "cannot automatically and invariably
outweigh countervailing public interests." Taylor, 484 U.S. at
414. Thus, a defendant's right to present a meaningful defense
is violated only when a rule or statute infringes upon a
"weighty interest of the accused" and is "arbitrary" or
"disproportionate to the purpose[] [it is] designed to serve."
Holmes v. South Carolina, 547 U.S. 319, 324 (2006) (quotation
marks omitted) (quoting Scheffer, 523 U.S. at 308).
¶62 Here, Wis. Stat. § 905.04, the privilege statute, is
neither arbitrary nor disproportionate to the purpose it is
designed to serve. We have stressed that the "public policy
underpinning the privilege is to encourage patients to freely
and candidly discuss medical concerns with their physicians by
ensuring that those concerns will not unnecessarily be disclosed
to a third person." Steinberg v. Jensen, 194 Wis. 2d 439, 459,
534 N.W.2d 361 (1995).28
28
One court has noted,
The rationale for the psychologist-client privilege
was cogently stated in an Advisory Committee Note to
Proposed Federal Rule of Evidence 504:
Among physicians, the psychiatrist has a special need
to maintain confidentiality. His capacity to help his
patients is completely dependent upon their
willingness and ability to talk freely. This makes it
(continued)
48
No. 2011AP2680-CR
¶63 Additionally, the Supreme Court of the United States
has recognized a federal psychotherapist privilege. Jaffee v.
Redmond, 518 U.S. 1, 18 (1996). Throughout its opinion adopting
the privilege, the Court strongly emphasized the importance of
such a privilege:
Effective psychotherapy, by contrast, depends upon an
atmosphere of confidence and trust in which the
patient is willing to make a frank and complete
disclose of facts, emotions, memories, and fears.
Because of the sensitive nature of the problems for
which individuals consult psychotherapists, disclosure
of confidential communications made during counseling
sessions may cause embarrassment or disgrace. For this
reason, the mere possibility of disclosure may impede
development of the confidential relationship necessary
for successful treatment.
Id. at 10 (emphasis added). Moreover, the Court stressed,
difficult if not impossible for him to function
without being able to assure his patients
confidentiality and, indeed, privileged communication.
Where there may be exceptions to this general
rule . . . , there is wide agreement that
confidentiality is a sine qua non for successful
psychiatric treatment. The relationship may well be
likened to that of the priest-penitent or the lawyer-
client. Psychiatrists not only explore the very depths
of their patient's conscious, but their unconscious
feelings and attitudes as well. Therapeutic
effectiveness necessitates going beyond a patient's
awareness and, in order to do this, it must be
possible to communicate freely. A threat to secrecy
blocks successful treatment.
Commonwealth v. Kyle, 533 A.2d 120, 126 (Pa. Super Ct. 1987)
(alterations in original) (quoting Report No. 45, Group for the
Advancement of Psychiatry 92 (1960), quoted in Advisory
Committee's Notes to Proposed Rules, 56 F.R.D. at 242); see also
Commonwealth v. Wilson, 602 A.2d 1290, 1295 (Pa. 1992) (citing
Kyle and approving of its holding).
49
No. 2011AP2680-CR
Making the promise of confidentiality contingent upon
a trial judge's later evaluation of the relative
importance of the patient's interest in privacy and
the evidentiary need for disclosure would eviscerate
the effectiveness of the privilege. As we explained in
[another case], if the purpose of the privilege is to
be served, the participants in the confidential
conversation "must be able to predict with some degree
of certainty whether particular discussions will be
protected. An uncertain privilege, or one which
purports to be certain but results in widely varying
applications by the courts, is little better than no
privilege at all."
Id. at 17-18 (emphasis added) (quoting Upjohn Co. v. United
States, 449 U.S. 383, 393 (1981)). In short, Wis. Stat.
§ 905.04, the privilege statute, serves the crucial purpose of
ensuring that individuals——especially individuals who may be
suffering as a result of a traumatic experience, like sexual
assault——can freely and openly communicate with and be treated
by their mental health provider. See United States v. Shrader,
716 F. Supp. 2d 464, 473 (S.D. W. Va. 2010) ("[F]or [this
victim] and other alleged stalking victims to have to choose
whether to obtain counseling knowing that their alleged stalkers
can subpoena the records thereof would be no choice at all. This
chilling effect is precisely what the Supreme Court foresaw and
explicitly rejected in Jaffee.").29 Accordingly, § 905.04, the
29
See also State v. Percy, 548 A.2d 408, 415 (Vt. 1988)
("We are particularly solicitous of the need of a victim of a
sexual assault to seek and receive mental health counseling
without fear that her statements will end up in the public
record . . . . We are unwilling to require the victim to forego
counseling or risk disclosure absent the most compelling
justification——none has been asserted here.").
50
No. 2011AP2680-CR
privilege statute, is not arbitrary or disproportionate to the
purpose it was designed to serve.
F. THE SIMPLE REMEDY IF THE PEOPLE OF WISCONSIN WANT A BALANCING
TEST: HAVE THE LEGISLATURE AMEND WIS. STAT. § 905.04 TO INCLUDE
AN EXCEPTION.
¶64 Over the years, the Legislature has amended Wis. Stat.
§ 905.04, the privilege statute, numerous times, so the
Legislature can, if it wants, amend § 905.04 to include a
Shiffra/Green-like balancing test. Thus, should our
interpretation and application of § 905.04 and the Constitution
represent an "undesired result, the legislature may rectify the
situation" by amending § 905.04 to include a Shiffra/Green-like
balancing test as an exception to the general privilege rule.
Hamilton v. Hamilton, 2003 WI 50, ¶49, 261 Wis. 2d 458, 661
N.W.2d 832.
¶65 For example, Iowa's privilege statute contains a
Shiffra/Green-like exception to its general privilege rule. Iowa
Code § 622.10(4) states,
a. Except as otherwise provided in this subsection,
the confidentiality privilege under this section shall
be absolute with regard to a criminal action and this
section shall not be construed to authorize or require
the disclosure of any privileged records to a
defendant in a criminal action unless either of the
following occur:
(1) The privilege holder voluntarily waives the
confidentiality privilege
(2)(a) The defendant seeking access to privileged
records under this section files a motion
demonstrating in good faith a reasonable probability
that the information sought is likely to contain
exculpatory information that is not available from any
51
No. 2011AP2680-CR
other source and for which there is a compelling need
for the defendant to present a defense in the case.
Such a motion shall be filed not later than forty days
after arraignment under seal of the court. Failure of
the defendant to timely file such a motion constitutes
a waiver of the right to seek access to privileged
records under this section, but the court, for good
cause shown, may grant relief from such a waiver.
(b) Upon a showing of reasonable probability that
the privileged records sought may likely contain
exculpatory information that is not available from any
other source, the court shall conduct an in camera
review of such records to determine whether
exculpatory information is contained in such records.
(c) If exculpatory information is contained in
such records, the court shall balance the need to
disclose such information against the privacy interest
of the privilege holder.
(d) Upon the court's determination, in writing,
that the privileged information sought is exculpatory
and that there is a compelling need for such
information that outweighs the privacy interest of the
privilege holder, the court shall issue an order
allowing the disclosure of only those portions of the
records that contain the exculpatory information. The
court's order shall also prohibit any further
dissemination of the information to any person, other
than the defendant, the defendants' attorney, and the
prosecutor, unless otherwise authorized by the court.
b. Privileged information obtained by any means other
than as provided in paragraph "a" shall not be
admissible in any criminal action.
In simpler terms, Iowa allows a defendant to make a motion
"demonstrating in good faith a reasonable probability that the
information sought is likely to contain exculpatory information
that is not available from any other source and for which there
is a compelling need for the defendant to present a defense in
the case." Iowa Code § 622.10(4)(2)(a). If the defendant meets
52
No. 2011AP2680-CR
the requisite showing, "the court shall conduct an in camera
review of such records to determine whether exculpatory
information is contained in such records." Iowa Code
§ 622.10(4)(2)(b). Should the in camera review of the records
reveal exculpatory information, the court must next "balance the
need to disclose such information against the privacy interest
of the privilege holder." Iowa Code § 622.10(4)(2)(c). If "there
is a compelling need for such information that outweighs the
privacy interest of the privilege holder," then the court must
"issue an order allowing the disclosure of only those portions
of the records that contain the exculpatory information." Iowa
Code § 622.10(4)(2)(d).
¶66 In short, even though there is no constitutional basis
for Shiffra/Green, the Legislature could, if it wanted to, give
a defendant access to privileged information by following Iowa's
lead and amending Wisconsin's privilege statute.30 See Bostco LLC
v. Milwaukee Metro. Sewerage Dist., 2013 WI 78, ¶61, 350
Wis. 2d 554, 835 N.W.2d 160 ("When a statute [does not] to
address a particular situation, the remedy for the omission does
not lie with the courts. It lies with the legislature.").
G. THE OPPORTUNITY TO PRESENT A MEANINGFUL DEFENSE.
¶67 Before we conclude, we note that defendants will
certainly have an opportunity to present a meaningful defense
30
In addition to Iowa, Kentucky and Massachusetts have some
type of exception that would allow a court to conduct an in
camera review of a person's privileged mental health treatment
records. See Ky. R. Evid. 506(d)(2); Mass. R. Evid. 503(d)(8).
53
No. 2011AP2680-CR
without having access to privileged information via a motion for
in camera review.
¶68 First, all defendants are presumed innocent until
proven guilty. Taylor v. Kentucky, 436 U.S. 478, 483 (1978)
("The principle that there is a presumption of innocence in
favor of the accused is the undoubted law, axiomatic and
elementary, and its enforcement lies at the foundation of the
administration of our criminal law." (quoting Coffin v. United
States, 156 U.S. 432, 453 (1895)).
¶69 Second, all defendants have the right to physically
confront and cross-examine witnesses as well as have the right
to compel the attendance of witnesses at trial. See Ritchie, 480
U.S. at 51; Washington v. Texas, 388 U.S. at 19.
¶70 Third, the prosecutor and those acting on behalf of
the prosecution have a constitutionally-mandated duty to
disclose to the defendant exculpatory evidence under Brady. See
Brady, 373 U.S. at 87.
¶71 Fourth, a defendant could call other witnesses and
have them testify about the complainant's character for
truthfulness. See Wis. Stat. § 906.08 ("Except as provided in s.
972.11(2), the credibility of a witness may be attacked or
supported by evidence in the form of reputation or opinion, but
subject to the following limitations: (a) The evidence may refer
only to character for truthfulness or untruthfulness. . . . ").
¶72 Finally, Wisconsin and many other states have
mandatory reporting laws. See Wis. Stat. § 48.981(2). These laws
mandate that certain persons who have contact with a child
54
No. 2011AP2680-CR
report abuse. Id. For example, § 48.981(2m)(c)-(d), requires a
"health care provider who provides any health care services to a
child" or a "person who obtains information about a child who is
receiving or has received health care services from a health
care provider" to "report as required . . . if he or she has any
reason to suspect . . . [t]hat the child, because of his or her
age or immaturity, was or is incapable of understanding the
nature or consequences of sexual intercourse or sexual contact."
A defendant could ask a treatment provider who would have been
subject to the mandatory reporting requirement if he or she ever
reported the defendant to the authorities. In short, defendants,
including Lynch, have many other means by which to cast doubt on
a complainant's allegations and the State's case, thereby
affording defendants the opportunity to present a meaningful
defense.31
31
It is true that there are occasions when a defendant is
wrongfully accused of committing a crime, including a sexual
assault, and we realize that this is an emotionally appealing
argument that favors the dissent's position. This kind of
emotional appeal is heightened when members of this court use
inflammatory rhetoric.
Regardless, we expect the criminal justice system to
function as it is supposed to by weeding out occasions of false
accusations. This is why we have an abundance of constitutional
safeguards, such as the presumption of innocence, the right to
confront and cross examine witnesses, and the Brady requirement.
We have never before allowed the hypothetical idea that someone
might be wrongfully accused to obliterate our rules of evidence
(for example, hearsay) or our other privileges (for example, the
lawyer-client privilege). See Kyle, 533 A.2d at 131 n.15 ("We
note parenthetically that permitting in camera review of
information protected by the absolute privilege between
psychologist and client could possibly render other absolute
(continued)
55
No. 2011AP2680-CR
privileges subject to the same limitation."). Simply put, we do
not toss out our constitution, our rules, or our statutes solely
because a defendant might be wrongly accused; rather, we rely on
our criminal justice system and its adversarial process to
remove erroneous cases, including erroneous sexual assault
cases.
In cases like this one, neither the prosecutor nor the
defendant has access to a complainant's privileged mental health
treatment records. Accordingly, "[T]he privilege does not
unfairly place the defense in a disadvantageous position; like
the defense, the prosecution does not have access to the
[privileged] file and, thus, cannot use the information to make
its case." Kyle, 533 A.2d at 130; see State v. Maday, 179
Wis. 2d 346, 370-71, 507 N.W.2d 365 (Ct. App. 1993) ("A
defendant who is prevented from presenting testimony from an
examining expert when the state is able to present such
testimony is deprived of a level playing field. '[A] State may
not legitimately assert an interest in maintenance of a
strategic advantage over the defense, if the result of that
advantage is to cast a pall on the accuracy of the verdict
obtained.'" (emphasis added) (alteration in original) (quoting
Ake v. Oklahoma, 470 U.S. 68, 79) (1985))). Indeed, if the
prosecution had access, it may need to disclose the records
pursuant to Brady.
Brady is the reason Lynch already has access to some of the
complainant's mental health treatment records. Prior to the
complainant's father's trial, the complainant waived her
privilege, which allowed the State to obtain certain mental
health treatment records to prosecute her father. In the present
case, the State turned over all of the mental health treatment
records it had in its possession from when it prosecuted the
complainant's father.
Let us be clear: in this case, we do nothing more than
decline to create a constitutional right. We leave the question
of whether a Shiffra/Green-like exception to the privilege
statute is right for Wisconsin to the Legislature, which may, if
so inclined, create an exception to the statute it has amended
numerous times. Similarly, we leave the question of whether
there is a constitutional right to access privileged information
to the Supreme Court of the United States, which may, if so
inclined, declare that a constitutional right to this type of
information exists.
56
No. 2011AP2680-CR
III. CONCLUSION
¶73 To briefly summarize, we conclude that Lynch has no
right to access privileged information via a motion for in
camera review. Simply put, no constitutional provision affords
him such a right. Moreover, even if Lynch had a right, his right
would not automatically trump the privilege statute. Rather, his
right would need to be balanced against the privilege statute.
The Supreme Court of the United State's balancing test for
presentation of evidence cases instructs us to consider whether
the statute at hand is arbitrary or disproportionate to the
purpose it is designed to serve. Here, the privilege statute is
neither arbitrary nor disproportionate as it protects the free
flow of open and honest communication between a patient and his
or her physician. For these reasons, we would overrule
Shiffra/Green and its progeny.
By the Court.—As a result of a divided court, the law
remains as the court of appeals has articulated it.
57
No. 2011AP2680-CR.pdr
¶74 PATIENCE DRAKE ROGGENSACK, C.J. (concurring). The
writing of Justice Shirley S. Abrahamson and Justice Ann Walsh
Bradley herein causes concern because it diminishes the
significant and sensitive issues for which review was granted;
attempts to demean the writings of other justices rather than
addressing legal reasoning they employ; and may evidence a
pattern of joint writing that is bottomed in a desire to injure
rather than to inform.
¶75 In this review, the court is faced with deciding
competing legal issues: Lynch's alleged constitutional right to
obtain the complainant's mental health treatment records to
defend against charges of sexual assault; the complainant's
privilege to withhold confidential mental health treatment
records; precedent that would bar the complainant from
testifying against Lynch if she does not waive the privilege she
holds in regard to her mental health treatment records; and
whether that precedent should be followed or modified. Justice
David Prosser, Justice Annette Ziegler and Justice Michael
Gableman have addressed these complex issues in various ways.
¶76 Justice Abrahamson and Justice A.W. Bradley
characterize their writings as "the Twilight Zone" and "the
court's imaginative zone." This defamatory labeling of
colleagues' writings does not address the legal issues the
parties asked us to review. However, it is the type of comment
that the press will seize upon and report over and over again.
Justice Abrahamson and Justice A.W. Bradley know what the press
1
No. 2011AP2680-CR.pdr
will do. They even cite to the 1959 television program to aid
the press in reporting their comments.
¶77 More importantly however, Justice Abrahamson's and
Justice A.W. Bradley's defamatory labeling of colleagues'
writings demonstrates a lack of respect for the very serious
constitutional and sensitive personal issues presented by the
parties who sought our review: a woman who claims repeated
sexual assault at the hands of Lynch and Lynch's claim that he
cannot adequately defend against her allegations without her
mental health treatment records.
¶78 None of the issues before us has anything to do with
the Twilight Zone or any other zone. Rather, they are
significant and complex issues that the court has repeatedly
struggled to address. See State v. Johnson, 2013 WI 59, 348
Wis. 2d 450, 832 N.W.2d 609 (per curiam); State v. Johnson, 2014
WI 16, 353 Wis. 2d 119, 846 N.W.2d 1 (per curiam) (opinion on
reconsideration).
¶79 And finally, Justice Abrahamson's and Justice A. W.
Bradley's combined writing herein may evince a pattern, wherein
they combine to mount personal attacks on colleagues, rather
than attacking reasoning other justices employ when deciding
issues presented to the court for review. See St. Croix Cty. v.
Michael D., 2016 WI 35, ¶53, 368 Wis. 2d 170, __ N.W.2d __
(Roggensack, C.J., concurring). Because transparency is helpful
to the reader, I write separately and also join the lead
opinion.
2
No. 2011AP2680-CR.ssa & awb
¶80 SHIRLEY S. ABRAHAMSON & ANN WALSH BRADLEY,
JJ. (concurring in part, dissenting in part). The petitioner,
State of Wisconsin, seeks review of a court of appeals' decision
that affirmed the circuit court's determinations: (1) that the
defendant made a sufficient showing entitling him to an in
camera review of the complainant's privileged mental health
treatment records; and (2) that the exclusive remedy for refusal
to disclose those records is witness preclusion.
¶81 We would affirm that part of the court of appeals'
decision that concluded, adhering to 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, that the defendant
made a sufficient showing entitling him to an in camera review
of the complainant's privileged mental health records.
¶82 However, we would reverse that part of the court of
appeals' decision that concluded that exclusion of the
complainant's testimony is the only available remedy when the
complainant refuses to disclose the requested privileged mental
health treatment records.
¶83 In discussing these issues, we focus on the "lead
opinion" of Justice Michael J. Gableman (joined by two other
justices) even though it does not represent the views of a
majority of the justices. Indeed, Justice Gableman's opinion
disagrees with the mandate (the result) stated in his opinion.
The mandate affirms the court of appeals, and a majority of the
court would affirm, at least in part, the decision of the court
1
No. 2011AP2680-CR.ssa & awb
of appeals. Contrary to the mandate, Justice Gableman's
analysis and conclusion would reverse the decision of the court
of appeals.
¶84 The implications of mislabeling Justice Gableman's
three justice opinion as a "lead opinion" will be discussed
further below.
¶85 For the reasons set forth, we concur in part, dissent
in part, and write separately in an effort to explain what the
court does (and does not do) in this case.
I
¶86 In this case we are asked to consider whether a
defendant upon a sufficient showing can obtain disclosure of a
witness's mental health records when it is necessary for his or
her defense via a motion for in camera review. This is not a
new question unaddressed by Wisconsin precedent.
¶87 In State v. Shiffra, 175 Wis. 2d 600, 605, 499
N.W.2d 719 (Ct. App. 1993), the court of appeals determined that
a defendant is entitled to an in camera review of mental health
treatment records once the defendant makes a preliminary showing
that the sought-after evidence is material to his or her
defense. This court adopted Shiffra, with some modification, in
State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298.1
1
Green clarified that for an in camera review the defendant
must make a preliminary showing that there is "a reasonable
likelihood that the records contain relevant information
necessary to a determination of guilt or innocence and is not
merely cumulative to other evidence available to the defendant."
State v. Green, 2002 WI 68, ¶34, 253 Wis. 2d 356, 646
N.W.2d 298.
2
No. 2011AP2680-CR.ssa & awb
¶88 Wisconsin courts have relied on Shiffra for decades.
See, e.g., Johnson v. Rogers Mem'l Hosp., Inc., 2005 WI 114,
¶¶72-73, 283 Wis. 2d 384, 700 N.W.2d 27; State v. Allen, 2004 WI
106, ¶31, 274 Wis. 2d 568, 682 N.W.2d 433; State v. Solberg, 211
Wis. 2d 372, 386-87, 564 N.W.2d 775 (1997). Given that
reliance, extra weight must be accorded to the principle of
stare decisis (stand by things decided).
¶89 Yet, Justice Gableman's opinion would overrule this
long-standing precedent.2 The lengthy discussion of why Justice
Gableman's opinion would overrule Shiffra relegates Wisconsin's
jurisprudence on stare decisis to a footnote. This doctrine is
a necessary part of any analysis that attempts to justify
overruling a case that has been relied on for decades and cited
approximately 90 times by state courts (including Wisconsin
courts).
¶90 Further, the premise of Justice Gableman's opinion
that there is no constitutional right to access information in
criminal cases is a flawed overgeneralization. Justice
Gableman's op., ¶¶47, 55. It serves as a spring board enabling
Justice Gableman's opinion to reach an erroneous conclusion that
there is no constitutional basis for allowing a defendant access
to a complainant's mental health records.
¶91 Finally, Justice Gableman's opinion ignores a canon of
statutory construction, requiring statutes addressing the same
2
Only three justices voted to overrule the Shiffra/Green
procedure. Because we are unable to reach a consensus, the
decision of the court of appeals stands.
3
No. 2011AP2680-CR.ssa & awb
subject to be interpreted such that both statutes are operative.
Rather than reading the statutes to give legal effect to both,
Justice Gableman's opinion's analysis considers only one
statute, allowing it to reach its conclusion that the
Shiffra/Green procedure "cannot be grounded in any other legal
basis." Justice Gableman's op., ¶8.
¶92 Contrary to Justice Gableman's opinion, neither we nor
a majority of the court would discard our long-standing
precedent so easily. The Shiffra/Green procedure is a
reasonable answer to the difficult issue of how to balance
multiple competing interests. Although we concur believing that
Shiffra should be upheld, we yet again caution that Shiffra's
remedies are not limited to witness preclusion. Accordingly, we
respectfully dissent in part.
II
¶93 Absent from Justice Gableman's opinion is an analysis
of Wisconsin's jurisprudence on stare decisis. Instead, its
discussion of stare decisis focuses on quotations from the
United States Supreme Court. Justice Gableman's op., ¶39 n.18.
However, this court has provided more detailed guidance on how
stare decisis applies in our state. It has repeatedly explained
that the principle requires "special justification" to overrule
past decisions. See, e.g., State v. Luedtke, 2015 WI 42, ¶40,
362 Wis. 2d 1, 863 N.W.2d 592; State v. Young, 2006 WI 98, ¶51,
294 Wis. 2d 1, 717 N.W.2d 729; Bartholomew v. Wis. Patients
Comp. Fund, 2006 WI 91, ¶32, 293 Wis. 2d 38, 717 N.W.2d 216.
4
No. 2011AP2680-CR.ssa & awb
¶94 We have indicated that the reasons for departing from
stare decisis typically include: "changes or developments in
the law that undermine the rationale behind a decision"; "the
need to make a decision correspond to newly ascertained facts";
"a showing that a decision has become detrimental to coherence
and consistency in the law"; "a showing that a decision is
unsound in principle"; and "a showing that a decision is
unworkable in practice." Young, 294 Wis. 2d 1, ¶51 n.16 (citing
Johnson Controls, Inc. v. Emp'rs. Ins., 2003 WI 108, ¶¶98-99,
264 Wis. 2d 60, 665 N.W.2d 257).
¶95 The body of Justice Gableman's opinion does not point
to any of these reasons for departing from stare decisis, rather
it explains that it would overrule Shiffra because Shiffra
relied on Pennsylvania v. Ritchie, 480 U.S. 39 (1987), a case
involving distinguishable circumstances. Justice Gableman's
opinion asserts that Ritchie is an "untenable foundation" for
Shiffra's procedure and "never should have been stretched to
cover privileged records held by agencies far removed from
investigative and prosecutorial functions." Justice Gableman's
op., ¶¶36, 39. In a footnote, it adds that Shiffra is unsound
in principle. Id., ¶39 n.19.
¶96 We cannot agree that the Shiffra court's decision to
extend United States Supreme Court precedent to a somewhat
analogous situation is "untenable" or "unsound." As detailed in
Justice Ziegler's "dissent" and discussed in Justice Prosser's
"dissent," Ritchie does not foreclose its application to a
5
No. 2011AP2680-CR.ssa & awb
broader set of circumstances. Justice Ziegler's "dissent,"
¶¶28-33; Justice Prosser's "dissent," ¶¶7-8.
¶97 This point is underscored by the fact that Shiffra's
approach was not unique. Several courts have extended Ritchie's
holding to mental health records kept by private entities. See,
e.g., State v. Kelly, 545 A.2d 1048, 1056 (Conn. 1988); Burns v.
State, 968 A.2d 1012, 1024 (Del. 2009); People v. Bean, 560
N.E.2d 258, 273 (Ill. 1990); Commonwealth v. Barroso, 122
S.W.3d 554, 564 (Ky. 2003); Cox v. State, 849 So. 2d 1257, ¶53
(Miss. 2003); State v. Cressey, 628 A.2d 696, 703-04 (N.H.
1993); State v. Rehkop, 908 A.2d 488, 495-96 (Vt. 2006); Gale v.
State, 792 P.2d 570, 581 (Wyo. 1990).
¶98 Given that Wisconsin courts have relied on Shiffra for
decades, extra weight must be accorded to the principle of stare
decisis. The factual distinctions between Ritchie and Shiffra
fall short of its special justification requirement.
¶99 Perhaps Justice Gableman's opinion omits an analysis
of Wisconsin's jurisprudence on stare decisis because it would
inexorably lead to a different conclusion. In essence, Justice
Gableman's opinion is anchored to the belief that Shiffra was
wrongly decided.
¶100 Stare decisis has been heralded as a cornerstone of
this state's jurisprudence since our earliest days of statehood.
In 1859 the Wisconsin Supreme Court declared: "Stare decisis is
the motto of courts of justice." Ableman v. Booth, 11
Wis. (*498) 517, (*522) 541 (1859).
6
No. 2011AP2680-CR.ssa & awb
¶101 The doctrine requires fidelity to the rule of law.
Because Shiffra is well-established precedent, the question is
not who has the better argument today but "whether today's
["lead opinion"] has come forward with the type of extraordinary
showing that this court has historically demanded before
overruling one of its precedents." Payne v. Tennessee, 501 U.S.
808, 848 (1991) (Marshall, J., dissenting). The answer is
clear: it has not.
¶102 Nothing of legal consequence has changed since
Shiffra. The only change has been in the composition of the
court.
III
¶103 Justice Gableman's opinion also errs by making
overgeneralized statements about a defendant's right to access
information in order to claim that there is no constitutional
basis for allowing a defendant access to mental health treatment
records. It broadly provides that there is no constitutional
right to access information in criminal cases. Justice
Gableman's op., ¶¶47, 55. Further, it claims that "a defendant
is entitled to access information only to the extent outlined in
Wis. Stat. § 971.23, our criminal discovery statute." Justice
Gableman's op., ¶47; see also Justice Gableman's op., ¶54
("Discovery is purely statutory").
¶104 These statements overlook past precedent discussing
criminal defendants' due process rights. In State v. Maday, the
court held that "pretrial discovery is a fundamental due process
right." Maday, 179 Wis. 2d 346, 354, 507 N.W.2d 365 (Ct. App.
7
No. 2011AP2680-CR.ssa & awb
1993). That case considered whether a defendant could require a
victim to undergo a pretrial psychological evaluation when the
state gives notice that it intends to introduce evidence
generated by an exam of the victim by its own experts.3 The
court answered this question in the affirmative. It explained
that due process accords a defendant the opportunity to give
relevant evidence at trial and a defendant could not do so
without having the opportunity to first discover it.4
¶105 This court quoted Maday with approval in State v.
Schaefer, 2008 WI 25, 308 Wis. 2d 279, 746 N.W.2d 457. Schaefer
agreed that "[p]roviding a defendant with meaningful pretrial
discovery underwrites the interest of the state in guaranteeing
that the quest for the truth will happen during a fair trial."5
3
State v. Maday, 179 Wis. 2d 346, 349, 507 N.W.2d 365 (Ct.
App. 1993).
4
Maday, 179 Wis. 2d at 357.
5
State v. Schaefer, 2008 WI 25, ¶23, 308 Wis. 2d 279, 746
N.W.2d 457 (quoting Maday, 179 Wis. 2d at 354-55) (emphasis
omitted).
Curiously, Justice Gableman's opinion cites Schaefer as a
basis for its statement that "a defendant is entitled to access
information only to the extent outlined in Wis. Stat. § 971.23."
Justice Gableman's op., ¶47. However, the comments in Schaefer
referenced by Justice Gableman's opinion were made in the
context of discussing whether there is a right to discovery
prior to a preliminary examination. Because the constitutional
right to compulsory process applies to trials and not
preliminary examinations, it determined that Wis. Stat.
§ 971.23(1) (requiring the prosecution to provide discovery
materials within a reasonable time before trial) and Wis. Stat.
§ 971.31(5)(b) (barring discovery motions at preliminary
examinations and prior to the filing of an information)
governed.
8
No. 2011AP2680-CR.ssa & awb
¶106 Similar sentiments were expressed in State v.
Migliorino, 170 Wis. 2d 576, N.W.2d 678 (Ct. App. 1992). In
that case the defendant had been charged with trespass to a
medical facility, which required a showing that the entry
"tend[ed] to create or provoke a breach of the peace."6 The
defendant sought the identities of the patients present when she
entered the facility in order to dispute that element of the
charge. Thus, the issue before the court was whether a
defendant had the right to discover the identity of the
patients.
¶107 The court observed that the compulsory process right,
is "in plain terms the right to present a defense."7 That right,
in turn, "is fundamental to due process."8 Accordingly, it
explained that "[t]he concomitant issue of access to the
identity of witnesses, as to whom the compulsory-process right
would apply, is generally analyzed against the framework of
'fundamental fairness' guaranteed by due process."9 Observing
that "[i]t would be a bizarre rule indeed that gave defendants a
compulsory-process right to call witnesses but which also
withheld from them the ability to discover the identity of those
witnesses," the Migliorino court determined that at the very
6
Migliorino, 170 Wis. 2d at 592.
7
Migliorino, 170 Wis. 2d at 586 (quoting Washington v.
Texas, 388 U.S. 14, 19 (1967)).
8
Migliorino, 170 Wis. 2d at 586.
9
Migliorino, 170 Wis. 2d at 586.
9
No. 2011AP2680-CR.ssa & awb
least, the defendant was entitled to an in camera hearing to
determine whether any of the patients present had knowledge of
the "circumstances" of the defendant's entry.10
¶108 To be clear, this court has observed the "general
rule" that there is no "broad right of discovery" in criminal
cases. State v. Miller, 35 Wis. 2d 454, 474, 151 N.W.2d 157
(1967) (emphasis added). However, a general rule against broad
discovery does not preclude the possibility of scenarios where
defendants are entitled to information. As Maday and Migliorino
demonstrate, due process can require limited access to
information in certain circumstances. Accordingly, Justice
Gableman's opinion's premise that there is no constitutional
right to access information in criminal cases, is a flawed
overgeneralization. Justice Gableman's op., ¶¶47, 55.
IV
¶109 In addition to making overgeneralizations which
overlook Wisconsin precedent, Justice Gableman's opinion's
analysis ignores a canon of statutory construction. It is well-
established that statutes addressing the same subject should be
read in pari materia, such that both statutes are operative.
Kolupar v. Wilde Pontiac Cadillac, Inc., 2007 WI 98, ¶28, 303
Wis. 2d 258, 735 N.W.2d 93.
¶110 Yet, although Justice Gableman's opinion recognizes
that there are two related statutes at issue in this case——Wis.
Stat. § 146.82, which makes patient health care records
10
Migliorino, 170 Wis. 2d at 586, 595.
10
No. 2011AP2680-CR.ssa & awb
confidential, and Wis. Stat. § 905.04, which accords a patient
the privilege of refusing to disclose such confidential
information——its analysis considers only the statute creating
the privilege. Justice Gableman's op., ¶¶19, 56-63.
¶111 Our precedent is clear that these two statutes must be
interpreted together. We have explained that the principle of
in pari materia applies because together the statutes "represent
a collective statement as to the reach and limits of the
confidentiality and privilege which attach to [health care]
records or communications." State v. Denis L.R., 2005 WI 110,
¶57 n.21, 283 Wis. 2d 358, 699 N.W.2d 154 (quoting State v.
Allen, 200 Wis. 2d 301, 309, 546 N.W.2d 517 (Ct. App. 1996));
see also Johnson v. Rogers Mem'l Hosp., 283 Wis. 2d 384, ¶36;
Justice Prosser's "dissent," ¶12.
¶112 Although Wis. Stat. § 905.04 does not include an
exception to the privilege permitting access to mental health
records when they are necessary for a defense, such an exception
can be found in the confidentiality statute. Wisconsin Stat.
§ 146.82(2)(a)4. provides that patient health care records shall
be released "[u]nder a lawful order of a court of record."
Nowhere does Justice Gableman's opinion discuss this language or
how it should be interpreted alongside the privilege statute so
that it still has meaning. Without such an analysis, Justice
Gableman's opinion is incomplete.
V
¶113 Contrary to Justice Gableman's opinion, we would not
overrule Shiffra. There are strong interests implicated when a
11
No. 2011AP2680-CR.ssa & awb
defendant seeks a witness's mental health treatment records.
For defendants, it is the interest in being able to present a
complete defense. See Holmes v. South Carolina, 547 U.S. 319,
324 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)
("Whether rooted directly in the Due Process Clause of the
Fourteenth Amendment or in the Compulsory Process or
Confrontation Clauses of the Sixth Amendment, the Constitution
guarantees criminal defendants 'a meaningful opportunity to
present a complete defense.'")); State v. Behnke, 203
Wis. 2d 43, 56, 553 N.W.2d 265 (Ct. App. 1996) ("[T]he Due
Process Clause guarantees the defendant a right to a trial based
on truth seeking which can only be accomplished by allowing him
or her to present a complete defense.").
¶114 At the same time, patients have an interest in keeping
their mental health treatment records private. Due to the
sensitive nature of the problems for which patients seek mental
health treatment, "disclosure of confidential communications
made during counseling session may cause embarrassment or
disgrace." Jaffee v. Redmond, 518 U.S. 1, 10 (1996).
Accordingly, the physician-patient privilege in Wis. Stat.
§ 905.04 was created "to encourage patients to freely and
candidly discuss medical concerns with their physicians by
ensuring that those concerns will not unnecessarily be disclosed
to a third person." Steinberg v. Jensen, 194 Wis. 2d 439, 459,
534 N.W.2d 361 (1995).
¶115 The Shiffra procedure takes both of these interests
into account and prescribes a reasonable balance. Solberg, 211
12
No. 2011AP2680-CR.ssa & awb
Wis. 2d at 387 ("Such a procedure strikes an appropriate balance
between the defendant's due process right to be given a
meaningful opportunity to present a complete defense and the
policy interests underlying the Wis. Stat. § 904.05(2)
privilege.").
¶116 It is consistent with the approach taken by a majority
11
of state courts. They "have held that a criminal defendant,
upon a preliminary showing that the records likely contain
exculpatory evidence, is entitled to some form of pretrial
discovery of a prosecution witness's mental health treatment
records that would otherwise be subject to an 'absolute'
privilege." Barroso, 122 S.W.3d at 561. In camera judicial
review of a victim's privileged records "currently represents
the most common method of balancing statutory privileges against
the defendant's trial rights." State v. Pratt, 669 A.2d 562,
11
See e.g., D.P. v. State, 850 So. 2d 370, 373 (Ala. Crim.
App. 2002); State v. Slimskey, 779 A.2d 723, 732 (Conn. 2001);
Burns v. State, 968 A.2d 1012, 1024 (Del. 2009); Lucas v. State,
555 S.E.2d 440, 446 (Ga. 2001); People v. Bean, 560 N.E.2d 258,
273 (Ill. 1990); State v. Thompson, 836 N.W.2d 470, 486 (Iowa
2013); Commonwealth v. Barroso, 122 S.W.3d 554, 564 (Ky. 2003);
State v. Johnson, 102 A.3d 295, 297 (Md. 2014); State v. Hummel,
483 N.W.2d 68, 72 (Minn. 1992); Cox v. State, 849 So. 2d 1257,
1272 (Miss. 2003); State v. Duffy, 6 P.3d 453, 458 (Mont. 2000);
State v. Gagne, 612 A.2d 899, 901 (N.H. 1992); Kinsella v.
Kinsella, 696 A.2d 556, 570 (N.J. 1997); State v. Gonzales, 912
P.2d 297, 302 (N.M. Ct. App. 1996); People v. Viera, 133
A.D.3d 622, 623 (N.Y. App. Div. 2015); State v. Burnham, 58
A.3d 889, 898 (R.I. 2013); State v. Middlebrooks, 840
S.W.2d 317, 333 (Tenn. 1992), superseded on other grounds by
Tenn. Code Ann. § 39-13-392; State v. Cramer, 44 P.3d 690, 695-
96 (Utah 2002); State v. Barbera, 872 A.2d 309, 313 (Vt. 2005);
Gale v. State, 792 P.2d 570, 581 (Wyo. 1990).
13
No. 2011AP2680-CR.ssa & awb
571 (Conn. 1995). We see no reason to depart from our precedent
and end this practice in Wisconsin.
¶117 Because we would not overrule the Shiffra/Green
procedure, we turn to the question left unaddressed by Justice
Gableman's opinion: is witness preclusion the only remedy
available to the circuit court when a complainant refuses to
waive the physician-patient privilege?
¶118 We have addressed this issue before. When this court
granted the motion for reconsideration in State v. Johnson, we
wrote separately to explain that witness preclusion was not the
only remedy intended by the Shiffra court. 2014 WI 16, ¶19, 353
Wis. 2d 119, 846 N.W.2d 1 (Ann Walsh Bradley, J., concurring in
part, dissenting in part, joined by Abrahamson, C.J.) ("The
court in Shiffra expressly contemplated that a variety of
sanctions may be appropriate depending on the circumstances.").
¶119 In Shiffra, the court determined that it was not a
misuse of the circuit court's discretion to suppress the
victim's testimony as a sanction for her refusal to release the
records. 175 Wis. 2d at 612. Nowhere did it limit the remedies
available to witness preclusion. Rather, its language made
clear that it was discussing the facts of the case before it:
The only issue remaining is whether the trial court
misused its discretion when it suppressed Pamela's
testimony as a sanction for her refusal to release the
records. In this situation, no other sanction would be
appropriate. The court did not have the authority to
hold Pamela in contempt because she is not obligated
to disclose her psychiatric records. An adjournment in
this case would be of no benefit because the sought-
after evidence would still be unavailable. Under the
circumstances, the only method of protecting Shiffra's
14
No. 2011AP2680-CR.ssa & awb
right to a fair trial was to suppress Pamela's
testimony if she refused to disclose her records.'
Id. (emphasis added).
¶120 The author of Shiffra later clarified that the case
did not require suppression. State v. Johnson, No. 2011AP2864-
CRAC, unpublished slip op., ¶¶23-28 (Wis. Ct. App. Apr. 18,
2012) (Brown, C.J., dissenting). He proposed an alternative
remedy, whereby "if an alleged victim refuses to release medical
or counseling records to the court for in camera inspection, the
court may compel release anyway, pursuant to Wis.
Stat.§ 146.82(2)(a)4." Id., ¶24. Acknowledging that Wis. Stat.
§ 146.82 generally will not trump the physician-patient
privilege, he explained that where the privilege is trumped by
constitutional concerns, a court may utilize Wis. Stat.
§ 146.82(2)(a)(4) in order to conduct an in camera review. Id.,
¶25.
¶121 We would adopt this approach. It harmonizes the two
statutes addressing mental health treatment records and accounts
for defendants' right to present a complete defense. Further,
it alleviates the state's concern that the Shiffra procedure
allows witnesses to thwart prosecution. By giving the court the
power to review some mental health treatment records in camera
when a defendant has established a constitutional right to that
review, Judge Brown's remedy leaves the balancing of the
competing interests in the hands of the court.
¶122 As Judge Brown observed, "[t]he courts are especially
equipped for this task. Indeed, it is what judges do."
Johnson, No. 2011AP2864-CRAC, ¶27. We agree.
15
No. 2011AP2680-CR.ssa & awb
VI
¶123 In closing, we turn to the implications of mislabeling
Justice Gableman's three-justice opinion as a "lead opinion."
Rather than sow the seeds of confusion by issuing our opinions
seriatim with Justice Gableman's opinion occupying the "lead"
role, we should hew to our two-year-old precedent in Johnson,
353 Wis. 2d 119, ¶1 (on reconsideration). In Johnson, we
addressed almost identical factual and legal issues, and issued
a per curiam opinion stating that because the court was
deadlocked, "the court of appeals decision must be affirmed."12
¶124 Reading Justice Gableman's writing, designated as the
"lead" opinion, and reading Justice Prosser's and Justice
Ziegler's writings, self-designated (and so dubbed by Justice
Gableman) as "dissenting" opinions makes us feel like we've
stepped into "the Twilight Zone."13 As Justices Prosser and
Ziegler explain, they are dissenting because they disagree with
Justice Gableman's writing; they are not dissenting from the
court's bottom line, which affirms the decision of the court of
appeals.
¶125 All appearances to the contrary, the mandate (the
result) in this case is "the decision of the court of appeals is
affirmed." Justice Gableman's opinion, referred to as the "lead
12
State v. Johnson, 2014 WI 16, ¶1, 353 Wis. 2d 119, 846
N.W.2d 1 (on reconsideration).
13
CBS, The Twilight Zone (1959).
16
No. 2011AP2680-CR.ssa & awb
opinion," disagrees with this result and is in reality a
dissent.14
¶126 Three separate writings (Justice Ziegler's, Justice
Prosser's, and ours) concur (at least in part) in the result and
with the decision of the court of appeals. But for some
unstated reason, both Justice Prosser's and Justice Ziegler's
writings are labeled (and referred to in the "lead opinion") as
"dissents."15
¶127 By failing to acknowledge the real positions of the
justices, we are, in the words of Rod Serling, the creator of
The Twilight Zone, "traveling through another
dimension . . . into a . . . land whose [only] boundaries are
that of imagination."
¶128 In this zone of the court's imagination, Justice
Gableman's opinion (which represents the views of two other
justices, Patience Drake Roggensack and Rebecca G. Bradley) is
the "lead opinion," even though these three justices disagree
with the mandate, which leaves "the law . . . as the court of
appeals has articulated it" intact.
¶129 The court of appeals in this case followed Shiffra and
Green.16 Justice Gableman's "lead opinion," however, would
overturn Shiffra and Green.
14
Compare Justice Gableman's opinion, n.1.
15
See Justice Gableman's opinion, ¶¶16 n.15, 39 n.17 & 18,
72 n.31.
16
See State v. Lynch, 2015 WI App 2, ¶¶8, 44-45, 359
Wis. 2d 482, 859 N.W.2d 125.
17
No. 2011AP2680-CR.ssa & awb
¶130 Normally, we have a word for opinions that do not
garner the votes of a majority of the participating justices and
disagree with the mandate of the court: We call them
"dissents." For some unstated reason, Justice Gableman does not
label his writing either a dissent or a concurrence, thus
masking its true nature.
¶131 Likewise, in the court's imaginative zone, the
opinions of Justices Prosser and Ziegler are "dissents." Yet
they agree with the outcome of this case and would affirm the
decision of the court of appeals, which followed Shiffra and
Green. We would also affirm the part of the decision of the
court of appeals that followed Shiffra and Green as well,
although we would reverse the part of the decision of the court
of appeals that held that witness preclusion is the sole remedy
available under Shiffra and Green.17
¶132 Outside this imaginative zone, we have a word for
opinions that do not garner the votes of a majority but agree
with the mandate of the court: We call them "concurrences."
¶133 For some unstated reason, this label is not applied to
Justice Prosser's and Justice Ziegler's writings.
¶134 As Justice Ziegler writes, acknowledging the absurdity
of labelling her writing as a "dissent" when she agrees with the
result of this case: "Hence, although I write in dissent, I
dissent from the lead opinion; I agree with the functional
outcome of this case."18
17
See supra ¶42.
18
Justice Ziegler's "dissent," ¶47 n.14.
18
No. 2011AP2680-CR.ssa & awb
¶135 The "functional outcome of this case" is that we
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