Submitted on Briefs: October 12, 2015
of a decision of 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 As a result of a divided court, the
law remains as the court of appeals has articulated
(L.C. No. 2010CF365)
Court, Dodge County, Andrew P. Bissonette Judge
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.
the defendant-respondent, there was a brief by Robert R.
Henak of the Henak Law Office, S.C., Milwaukee, WI, with whom
on the brief was Ellen Henak and Christopher T. Van Wagner of
Christopher T. Van Wagner S.C., Madison, WI. Oral argument by
Robert R. Henak.
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).
MICHAEL J. GABLEMAN, J.
This is a review of a published decision of the court of
appeals that affirmed the Dodge County Circuit
Court's 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
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 under which a criminal defendant in
Wisconsin could obtain an in camera review of a person's
privileged mental health treatment records. Under
Shiffa/Green, a defendant can acquire a complainant's
privileged mental health treatment records when
hedemonstrates "a reasonable likelihood
that the records contain relevant information necessary to a
determination of guilt or innocence . . .
." Green, 253 Wis.2d 356, ¶19.
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 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.
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) to require production of the privileged
mental heath treatment records even when the complainant
refuses to consent to release.
Accordingly, three issues are presented for our
review. 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.
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
Wis.2d 119, 846 N.W.2d 1 (per curiam) (Johnson II). These
issues continue to divide this court.
Justice Gableman, joined by Chief Justice Roggensack and
Justice R.G. Bradley, would overturn Shiffra/Green. Our
reasoning is outlined in this lead opinion. 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
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
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.
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.
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
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.
Q. And there is a toilet and sink in this small room.
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
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
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,
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?
Q. How do you know that your father knew what was going on?
A. Because he was right outside the door when it was
. . . .
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?
. . . .
Q. [A]fter he started fondling you, did he place you again on
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?
Q. So like linoleum or something?
. . . .
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
. . . .
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.
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?
Q. The first incident were you crying?
Q. Second incident were you crying?
A. I had tears.
Q. Third incident when [another person] was there you were
A. Yes, I had tears. I was afraid to make any noise or any
. . . .
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
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?
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
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
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?
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].
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 child and three
counts of stalking.
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.
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 these records to the court, it would, pursuant to the
remedy contained in Shiffra/Green, bar her testimony at
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.
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. 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
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 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.
STANDARD OF REVIEW
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.
PRIVILEGE AND CONFIDENTIALITY
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:
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.
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
COURT OF APPEALS IMPROPERLY RELIED ON RITCHIE WHEN IT
INVENTED A RIGHT TO ACCESS PRIVILEGED INFORMATION VIA A
MOTION FOR IN CAMERA REVIEW.
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.
Original In Camera Review Case: Pennsylvania v.
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 "a protective service agency
charged with investigating cases of suspected mistreatment
and neglect." 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.
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
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.
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.").
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 (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.
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
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.
Id. (emphasis added).
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
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
In sum, there are two key takeaway points from Ritchie.
First, Ritchie involved a state statute that made the
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.
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.
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 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
Court of Appeals Gradual Expansion of Ritchie: In the
Interest of K.K.C., State v. S.H., and State v.
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 the trial court, provided he
makes a preliminary showing that the files contain evidence
material to his defense.
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.
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.
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 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] 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.
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.
Additionally, in S.H., a private mental health facility,
Directions Counseling Center, held the privileged 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
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 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
Id. at 606-07.
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.
Court's Adoption of Shiffra.
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 the Solberg
court simply parroted Shiffra's test and then cited
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
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.
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 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
State v. Rizzo, 2002 WI 20, ¶53, 250 Wis.2d
407, 640 N.W.2d 93 (citing Shiffra, 175 Wis.2d at 609-10).
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
Green, 253 Wis.2d 356, ¶21 n.4. To put it
bluntly, Shiffra 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.
therefore undertake to consider whether there is any legal
basis in which Shiffra can properly be
NEITHER THE SIXTH AMENDMENT NOR THE FOURTEENTH AMENDMENT
GUARANTEE A DEFENDANT THE RIGHT TO ACCESS PRIVILEGED
INFORMATION VIA A MOTION FOR IN CAMERA REVIEW.
We turn now to discuss whether there is any other legal basis
for creating a right to access privileged 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.
Sixth Amendment's Confrontation Clause.
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. 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
A plurality of the Supreme Court has specifically
considered--and rejected--the argument that "by denying
[a 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
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.
Sixth Amendment's Compulsory Process Clause.
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. 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)).
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 (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 ...