832 N.W.2d 609
Wis.2013Background
- This is a Wisconsin Supreme Court review of an unpublished court of appeals decision in a criminal case involving Samuel C. Johnson III.
- The central issue concerns whether privately-held, privileged mental health records must be produced for in camera review.
- The 17-year-old privilege-holder refused to consent to release records.
- The circuit court had balanced interests and allowed testing or consideration of records under Shiffra principles.
- The court of appeals had partially affirmed and partially reversed, addressing whether production was required and whether testimony could be precluded.
- The supreme court remanded, limiting production of records for in camera review while allowing the privilege-holder to testify.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Shiffra should be overruled regarding in camera review. | State would overrule Shiffra. | Johnson argues Shiffra should not apply to privately held records. | Shiffra not overruled (majority) |
| Whether the defendant met Green’s materiality showing for in camera review. | Johnson met the initial materiality showing. | Johnson did not meet the showing under Green. | Majority says Johnson met initial materiality showing (varied rationales) |
| Whether the circuit court may require production of privileged records for in camera review when the privilege-holder refuses consent. | Not explicitly stated here; focus on balancing interests. | Production not required in some rationales. | Majority conclude circuit court may not require production for in camera review; privilege-holder may testify |
| Whether the privilege-holder may testify without producing records on remand. | Privilege-holder's testimony permissible with balancing. | Records production balanced against testimony rights. | Privilege-holder may testify; records need not be produced on remand |
Key Cases Cited
- State v. Green, 253 Wis.2d 356 (2002 WI 68) (materiality and in camera review standards under Green)
- State v. Shiffra, 175 Wis.2d 600 (Ct. App. 1993) (premise for in camera review of privileged records)
- Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (pretrial in camera review of privileged records concept)
- State v. Rogers Memorial Hosp., 283 Wis.2d 384 (2005 WI 114) (burden and standards for materiality in privilege-related searches)