859 N.W.2d 125
Wis. Ct. App.2014Background
- Lynch sought an in camera review of A.M.'s mental health treatment records alleging probative, noncumulative evidence for his defense.
- The circuit court found a sufficient showing for in camera review; A.M. refused disclosure, leading the court to exclude her testimony under State v. Shiffra.
- A.M. testified at a preliminary hearing about abuse by Lynch overlapping with her father's abuse in the early 1990s.
- Lynch's offer of proof cites PTSD symptoms, delayed reporting, and a diagnosis of Sociopathic/Antisocial Personality Disorder as bases to challenge credibility.
- The circuit court concluded the records likely contain probative material affecting credibility and thus ordered in camera review.
- This decision addresses whether the proper remedy in light of Shiffra is exclusion of A.M.'s testimony if she withholds records.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lynch made the required showing for in camera review under Green | Lynch proved PTSD symptoms, delayed reporting, and credibility issues. | Lynch's showings were insufficient or not specific enough. | Yes; Lynch made a fact-specific showing satisfying Green. |
| Whether PTSD-related evidence in records is probative and noncumulative | PTSD symptoms in records could directly affect reliability of A.M.'s allegations. | Available testimony and other evidence render records cumulative. | Yes; records reasonably likely to contain probative, noncumulative PTSD-related evidence. |
| Whether delayed reporting by treating providers is probative in this case | Absence of reporting by mandatory reporters can show non-disclosure to providers and be probative of credibility. | Delayed reporting evidence may be unhelpful or cumulative. | Yes; absence of reporting by providers is reasonably likely to be probative and not merely cumulative. |
| Whether delayed reporting evidence is sufficiently probative given the case's unusual timing | A.M. reported the father's abuse contemporaneously but not Lynch's, which is unusual and potentially probative. | Delayed reporting is generally common and not uniquely probative here. | Yes; circumstances make delayed reporting in the records probative and not merely cumulative. |
| Whether the remedy under Shiffra must be exclusion of testimony given A.M.'s refusal to disclose records | If in camera review is warranted, other remedies might exist. | Alternative remedies could compel disclosure for review. | Exclusion of A.M.'s testimony is the appropriate remedy under Shiffra. |
Key Cases Cited
- State v. Green, 253 Wis. 2d 356 (2002 WI 68) (in camera review standard; reasonable likelihood standard for probative, noncumulative evidence)
- State v. Speese I, 191 Wis. 2d 205 (Ct. App. 1995) (lack of reporting by mandatory reporters supports in camera review)
- State v. Speese II, 199 Wis. 2d 597 (1996) (harmless error assessment; refined Speese analysis)
- State v. Shiffra, 175 Wis. 2d 600 (Ct. App. 1993) (exclusive remedy of testimony exclusion when records not disclosed for in camera review)
- State v. Robertson, 263 Wis. 2d 349 (2003 WI App 84) (fact-specific showing for in camera review; credibility/psychological condition as defense evidence)
- State v. Behnke, 203 Wis. 2d 43 (Ct. App. 1996) (Behnke as comparative caution on limited evidence supporting in camera review)