State v. Alan S. Johnson, 990 N.W.2d 174

Background

Alan S. Johnson was criminally charged with sexually assaulting his children and moved for in camera review of an alleged victim T.A.J.'s privately held mental‑health records, citing State v. Shiffra and State v. Green.
The circuit court held the victim lacked standing to oppose; the court of appeals reversed on Marsy’s Law standing grounds and the Supreme Court granted review.
Shiffra (1993) had allowed defendants to obtain in camera inspection of privately held, statutorily privileged health records upon a preliminary showing of materiality; Green (2002) tightened that showing to a "reasonable likelihood" the records are necessary and non‑cumulative.
The State and the victim asked the Court to reconsider Shiffra, arguing it misapplied Pennsylvania v. Ritchie and improperly intruded on statutory privilege and victims’ privacy.
The Wisconsin Supreme Court overruled Shiffra, holding Ritchie does not authorize in camera review of privately held, privileged health records, and remanded with instructions to deny Johnson’s motion.

Issues

Issue	State / Victim Argument	Johnson Argument	Held
Whether State v. Shiffra should be overruled	Shiffra misapplied Ritchie, is unworkable, and conflicts with victims’ rights and privilege statutes	Shiffra balances defendant’s due‑process right to present a defense and should be retained	Overruled Shiffra; framework permitting in camera review of privately held privileged health records abandoned
Whether Pennsylvania v. Ritchie constitutional rule extends to privately held, statutorily privileged health records	Ritchie is grounded in Brady and applies only when records are in state possession; it does not reach private custodians	Ritchie (and related precedent) supports in camera review to protect a defendant’s right to a fair trial	Held Ritchie does not apply to privately held records; Shiffra misread/overextended Ritchie
Whether court‑ordered in camera review of privately held therapy records is consistent with Wis. Stat. §905.04 privilege and therapeutic confidentiality	In camera review intrudes on therapist‑patient privilege, chills treatment, and statutory privilege should not be eroded by judicially created exceptions	In camera review is a limited intrusion that fairly balances defendant and victim interests	Held in camera review is a substantial intrusion that undermines the privilege and therapeutic relationship; courts may not judicially create the exception Shiffra announced
Whether Shiffra is unworkable in practice and incoherent with modern victims’‑rights law and sexual‑assault evidentiary developments	Shiffra is speculative, inconsistently applied, and now conflicts with expanded victims’ rights and statutory protections	Shiffra (as refined by Green) is workable and necessary to prevent wrongful convictions	Held Shiffra is unworkable and detrimental to coherence given statutory/constitutional victims’ rights and changes in the law; provides additional reason to overrule

Key Cases Cited

State v. Shiffra, 175 Wis. 2d 600 (Ct. App. 1993) (created procedure for in camera review of privileged health records)
State v. Green, 253 Wis. 2d 356 (Wis. 2002) (raised Shiffra standard to require a "reasonable likelihood" records are necessary and non‑cumulative)
Pennsylvania v. Ritchie, 480 U.S. 39 (U.S. 1987) (permitted in camera review of confidential state‑agency files under Brady when necessary to assess materiality)
Brady v. Maryland, 373 U.S. 83 (U.S. 1963) (prosecution must disclose favorable, material evidence in its possession)
Jaffee v. Redmond, 518 U.S. 1 (U.S. 1996) (psychotherapist‑patient privilege protects confidential therapy communications)
Weatherford v. Bursey, 429 U.S. 545 (U.S. 1977) (no general constitutional right to pretrial discovery)
United States v. Hach, 162 F.3d 937 (7th Cir. 1998) (Ritchie does not extend when records are not in government possession)
Rock Cnty. Dep’t of Soc. Servs. v. DeLeu, 143 Wis. 2d 508 (Ct. App. 1988) (discussed Ritchie in context of confidential agency records)
State v. S.H., 159 Wis. 2d 730 (Ct. App. 1990) (addressed in camera review requests for counseling records)