STATE of Wisconsin, Plaintiff-Respondent, v. Johnny L. GREEN, Defendant-Appellant-Petitioner.
No. 00-1392-CR
Supreme Court of Wisconsin
June 25, 2002
2002 WI 68 | 646 N.W.2d 298 | 253 Wis. 2d 356
For the plaintiff-respondent the cause was argued by Daniel J. O‘Brien, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
¶ 1. WILLIAM A. BABLITCH, J. Petitioner Johnny Green (Green) seeks review of a decision from the court of appeals that upheld his conviction for first-degree sexual assault as a repeat offender. Green
I. BACKGROUND
¶ 2. Green was charged in Winnebago County Circuit Court with one count of first-degree sexual assault of a child as a repeat offender, in violation of
¶ 3. N.W. did not inform anyone of the sexual assault until March 28, 1997, at which time she informed Russell. That same day, N.W. informed her mother. The police were contacted.
¶ 4. On April 10, 1997, Detective Robert Quant of the City of Oshkosh Police Department and Rod Schraufnagel of the Winnebago County Department of Social Services interviewed N.W. and her mother about the sexual assault. N.W. told them that, while she was lying on her bed, Green laid down beside her and proceeded to touch her breasts and vagina outside of her pajamas. N.W. alleged that this contact occurred around the time shе was taken to the hospital because of vaginal bleeding. This hospital visit occurred on or
¶ 5. More than a year later, on October 20, 1998, Detective Quant again interviewed N.W. During this interview, N.W. alleged the following. On the day of the assault, she was home alone with Green, and Green called her into her bedroom to watch television with him. When N.W. entered the room, Green was lying on the bed. N.W. sat on the bed, and Green pulled her to him. Green then climbed on top of her and pulled her pajama bottoms down. Green then allegedly penetrated her vagina with his penis. Green did not stop until she told him that she had to go to the bathroom. Then, instead of going to the bathroom, she tried to run outside, but Green stopped her and told her that if she told anyone, he would kill her and her mom. Green then took her to a gas station to buy candy and a beanie baby. Soon after they arrived home, N.W.‘s mother arrived home. A short time later, N.W. told her mother that she was urinating blood. Her mother then took her to the hospital.
¶ 6. About two months later, on December 14, 1998, Green was charged for having sexual intercourse with N.W. The complaint included the details, as discussed above, of N.W.‘s April 10, 1997 and October 20, 1998 statements to the police. The complaint did not contain any information about N.W. seeing a counselor.
¶ 7. The complaint also included details from an interview that Quant conducted with Russell. Russell told Quant that she remembered when Green had purchased the beanie baby for N.W. Russell stated that at that time she sensed N.W. was upset about sоmething, but N.W. did not say anything. Russell also alleged that on one occasion Green admitted to her that he had “fondled” or “fiddled” N.W. Russell stated that, after telling Green that he was a “sick bastard,” Green told her he was “only kidding to see how you would act.”
¶ 8. On January 5, 1999, the circuit court, the Honorable Bruce K. Schmidt presiding, held a preliminary hearing on the charges against Green. N.W. testified during this hearing. She alleged that Green did not touch her breasts or her vagina through her clothes. She maintained that he had sexual intercourse with her. During her testimony, she stated that she went over to a friend‘s house immediately after the assault and that Green went over to get her. She stated that she did not go anywhere else that evening and that she did not go to the hospital until the following day. After hearing testimony from N.W. and N.W.‘s mother, the court found probable cause and bound the matter over for further proceedings.
¶ 9. On February 10, 1999, the court held a pretrial hearing, addressing in part a motion for discovery filed by Green. Green‘s trial counsel informed the court that he had recently received a document from the State summarizing the April 10, 1997 interview. This document—a three-page interview summary written by Schraufnagel—made reference to N.W. attending counseling with Roberts. Based on this discovery, Green‘s trial counsel made an oral motion requesting the court to issue a subpoena duces tecum to obtain N.W.‘s counseling records. He alleged that the counseling
¶ 10. Green was tried before a jury over a three-day period on the sexual assault charge. Prior to trial, the court issued a sequestration order, which applied to “all prosecution and defense witnesses during the trial, apart from Det. Quant of the Oshkosh Police Department, who by virtue of being the lead investigator in the case should remain at the prosecution table.”
¶ 11. On the second day of trial, the prosecutor called Cheryl Haack, one of Green‘s friends, as a witness. Haack testified on direct examination that, on November 13, 1996, Green told her that he sexually assaulted N.W. Haack reiterated this statement on cross-examination. Haack‘s testimony was inconsistent with a prior statement that she had provided to the police, which alleged that her conversation with Green occurred in January or February 1997. Haack admitted at trial that after giving this statement she later learned that Green had been in jail during January and February 1997. She testified that she later realized that the correct date was November 13, 1996, after reviewing a calendar that she had kept during that time. Following cross-examination and redirect examination, Haack was excused as a witness.
¶ 12. The State then called another witness to testify. After this witness, the prosecutor recalled Haack to clarify the date on which Green confessed to her that he assaulted N.W. Green objected to Haack being recalled by the State, but the court allowed her to testify. During her testimony, Haack modified her previous testimony, asserting that Green confessed to her on November 19, 1996, not on November 13, 1996. Haack admitted that she had discussed the discrepancy of the date with the prosecutor in the hall during a break in trial proceedings after her testimony. The prosecutor admitted to a conversation with Haack, but stated that it occurred during a break in Green‘s cross-examination of Haack.
¶ 13. After the State rested its case, Green brought a motion to dismiss, alleging that the prosecutor had committed misconduct by violating the sequestration order by communicating with Haack during a break in trial and then recalling Haack as a witness to clarify her previous testimony. The court denied this motion.
¶ 14. The jury found Green guilty of first-degree sexual assault of a child as a repeat offender. He was sentenced to 42 years in prison.
¶ 15. In a post-conviction motion, Green requested a new trial asserting that the circuit court should have conducted an in camera review of N.W.‘s counseling records pursuant to State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993). He also argued that he was entitled to a new trial because the State had violated the sequestration order by communicating trial information to its witness during the course of the trial.
¶ 16. After a hearing, the court dеnied the post-conviction motion. The court ruled that Green never
¶ 17. The court of appeals, in an unpublished opinion, also held that Green failed to make a sufficient pretrial showing to entitle him to an in camera review of N.W.‘s counseling records. The court, citing Shiffra, stated that Green was required to make a preliminary showing that the evidence sought was “relevant and necessary to a fair determination of guilt or innocence.” More specifically, Green was required to show “specific facts which would bear upon the witness‘s ability to accurately perceive events, remember or testify.” The court concluded that Green had failed to offer any factual showing that the counseling records could contain information that would show N.W.‘s inability to perceive events, remember or testify.
¶ 18. The court also rejected Green‘s claim that the State had violated the sequestration order by conversing with its witness in the hallway during a break in the trial proceedings. The court stated that the purpose of such an order was to prevent the shaping of testimony by one witness to match that of other witnesses. Green, however, failed to cite any authority that a general sequestration order requires witnesses to also be sequestered from the prosecutor. Green‘s appropriate remedy, the court noted, would have been to move to strike the witness‘s testimony or request a mistrial. Regardless, the court held that, even assuming that there had been a violation of the sequestration order, Green did not suffer any prejudice because Haack was a terrible witness for the State and becаuse her lack of credibility had been amply demonstrated.
II. QUESTIONS PRESENTED
¶ 19. We address two issues. First, we examine whether Green met his burden at the pretrial hearing to compel the circuit court to conduct an in camera review of N.W.‘s counseling records. This question necessarily involves a determination of the standard to be applied when a defendant seeks an in camera review. We conclude that the 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. Applying a de novo standard of review, we conclude that the circuit court did not err in failing to conduct such a review in this case because Greеn failed to meet his burden to compel review. Second, we examine whether the sequestration order issued by the circuit court was violated when the prosecutor consulted with a witness during a break in trial and later recalled that witness to clarify the witness‘s previous testimony. We conclude that the consultation between the prosecutor and the witness in this case was not a violation of the sequestration order, and that, even if it was, Green has not shown any prejudice that resulted from this violation. The circuit court and the court of appeals both properly denied finding error. We affirm the court of appeals’ ruling.
III. IN CAMERA REVIEW
A. Standard of Review
¶ 20. Green first alleges that the circuit court erred by failing to conduct an in camera review of N.W.‘s
¶ 21. To determine whether Green met his burden, we first examine Shiffra, the case in which the court of appeals established that a defendant may obtain an in camera review of such privileged records upon a showing of materiality.4
¶ 22. Shiffra was charged with second-degree sexual assault, and one day before trial, he received evidence from the state showing that the victim had a history of psychiatric problems. Shiffra, 175 Wis. 2d at 603. He therefore moved for an adjournment arguing that he had recently received information frоm the state ” ‘which indicate[d] that... the complaining witness has a history of psychiatric problems which may affect her ability to perceive and relate truthful information.’ ” Id. The court granted the adjournment, and subsequently, Shiffra moved for an order requiring the state and the victim to provide him with the victim‘s
¶ 23. On review, the court of appeals affirmed. In its anаlysis, the court began by noting the competing rights and interests involved when a defendant seeks an in camera review of privileged records. On the one hand, a criminal defendant‘s right to due process, in particular the right to a meaningful opportunity to present a complete defense, is implicated. Id. at 605 and n.1. On the other hand, the state has an interest in protecting a patients’ privileged records,
¶ 24. In establishing the burden for this preliminary showing, the Shiffra court analogized to cases where a defendant seeks disclosure of a government informant‘s identity, which is also protected by privilege pursuant to statute.6 The court noted that, as in cases involving privileged psychiatric records, similar competing rights and interests are implicated in government informant cases. Shiffra, 175 Wis. 2d at 609. In government informant cases, a defendant may obtain an in camera review if he or she provides sufficient evidence to show “that an informer may be able to give testimony necessary to a fair determination of the issue of guilt or innocence in a criminal case....” Id. at 609 n.3. This burden is reflected in
The broad language of Shiffra—“that the sought-after evidence is relevant and may be helpful to the defense,“—certainly would seem to suggest a very low threshold for a defendant to establish the basis for an in camera inspection. A closer reading of Shiffra, however, reveals that a defendant must establish more
We have stated that this burden “does not place a significant burden upon the party seeking disclosure.” State v. Outlaw, 108 Wis. 2d 112, 125, 321 N.W.2d 145 (1982). “The showing need only be one of a possibility that the informer could supply testimony necessary to a fair determination.” Id. at 126.
than “the mere possibility” that psychiatric records “may be helpful” in order to justify disclosure for an in camera inspection.
[A]lthough Shiffra‘s reference to information that “is relevant and may be helpful to the defense” could cover almost anything the defense sought to discover, Shiffra did not repeat the “may be helpful” language elsewhere in the opinion but, instead, reiterated the standard: “may be necessary to a fair determination of guilt or innocence.”
Munoz, 200 Wis. 2d at 397-98 (citations omitted).8 In cases subsequent to Munoz, the court of appeals has followed the Munoz court‘s interpretation of Shiffra and applied the “may be necessary to a fair determination of guilt or innocence” standard. See State v. Navarro, 2001 WI App 225, ¶ 11, 248 Wis. 2d 396, 636 N.W.2d 481; State v. Walther, 2001 WI App 23, ¶ 10, 240 Wis. 2d 619, 623 N.W.2d 205 (Ct. App. 2000).
¶ 26. In the end, the Shiffra court concluded that Shiffra had met his burden in making a preliminary showing of materiality. The court noted that Shiffra had “presented ample evidence during the hearing on his discovery motion that [the victim‘s] psychiatric difficul-
¶ 27. Before concluding, the Shiffra court considered the state‘s argument that the victim‘s psychiatric records may contain information that was “merеly cumulative” to information that was already available to him. Id. at 610. The state described the significant amount of information that Shiffra had available to him on the victim‘s mental health history that was contained outside the records. Id. at 610-11. This evidence showed the extensive history of the victim‘s mental health problems and strongly suggested that Shiffra‘s specific concerns about the victim experiencing flashbacks and about her ability to relay truthful information were valid. The court recognized that some of the information contained in the records may be cumulative, but it nevertheless allowed for an in camera review, stating:
We disagree with the state. It may well be that the evidence contained in the psychiatric records will yield no information different from that available elsewhere. However, the probability is equally as great that the records contain independently probative information. It is also quite probable that the quality and thе probative value of the information in the reports may be better than anything that can be gleaned from other sources. Finally, the information might well serve as a confirmation of Pamela‘s [the victim‘s] problems in sexual matters. It is the duty of the trial court to determine whether the records have any independent probative value after an in camera inspection of the records.
Id. at 611. See also Navarro, 2001 WI App 225, ¶ 18 (concluding that an in camera review of confidential prison records was still warranted despite concerns that the information may be cumulative).
C. Standard for a Preliminary Showing
¶ 28. Both parties seek to clarify and further define the standard for a preliminary showing for an in camera review established in Shiffra. Green argues that it is sufficient for a defendant to show, as Shiffra contemplated, that the evidence contained in the records “may be helpful to his or her defense.” This showing is sufficient, he asserts, because the request is often made without the defendant‘s knowledge as to what information is specifically contained in the records. Therefore, a defendant should not be required to identify the exact information contained in the records that is material to his or her defense. In addition, the request is often made at the pretrial stage, when discovery is for the most part not yet completed and it is often impossible for the defendant to state that the information contained in the records will be necessary to the outcome of the case. It is a preliminary request to have the court simply look at the documents. Green also argues that there is no real difference between a requirement that the counseling records “may be helpful” and one that the records “may be necessary” because they both require a mere possibility that the records will assist the defendant. Green also points to State v. Hoag, 749 A.2d 331 (N.H. 2000) as setting forth an appropriate standard. Hoag states in relevant part:
The threshold showing necessary to trigger an in camera review is nоt unduly high. The defendant must
meaningfully articulate how the information sought is relevant and material to his defense. To do so, he must present a plausible theory of relevance and materiality sufficient to justify review of the protected documents, but he is not required to prove that his theory is true. At a minimum, a defendant must present some specific concern, based on more than bare conjecture, that, in reasonable probability, will be explained by the information sought.
Id. at 333 (emphasis added to show relevant language relied on by Green). This “plausible theory” standard, Green contends, provides the appropriate balance between maintaining the privileged nature of these records and affording a defendant his or her right to present a complete defense.
¶ 29. The State argues that it is clear from Shiffra and subsequent cases interpreting Shiffra that the court of appeals intended to adopt the “relevant and may be necessary to a fair determination of guilt or innocence” standard, similar to the standard required for cases involving government informants. The State argues that, under this standard, the defendant is required to clearly articulate what information he or she is seeking and how this information ties in to his or her particular defense. A vague proffer of need by the defendant is insufficient. Further, the State contends that the mere assertion that information might be helpful or useful to the defendant‘s case is insufficient. The records must contain information that is likely exculpatory for the defendant. In reaching this conclusion, the State relies on Goldsmith v. State, 651 A.2d 866 (Md. 1995). It states in relevant part:
We agree with the Supreme Court of Michigan that in assessing a defendant‘s right to privileged records, the required showing must be more than the fact that the
records “may contain evidence useful for impeachment on cross-examination. This need might exist in every case involving an accusation of criminal sexual conduct.” People v. Stanaway, 446 Mich. 643, 521 N.W.2d 557, 576 (1994) (footnotes omitted). . . . We therefore hold that in order to abrogate a privilege such as to require disclosure at trial of privileged records, a defendant must establish a reasonable likelihood that the privileged records contain exculpatory information necessary for a proper defense.
Id. at 876-77 (emphasis added to show relevant language relied on by the State). Based on this standard in Goldsmith, the State urges us to require a defendant to “make a specific preliminary showing that the counseling records will produce evidence that is relevant to material issues in dispute and likely exculpatory of the defendant.”
¶ 30. Before we set forth our standard, we note two things. First, we conclude that it is clear that the court of appeals has adopted the “may be necessary” standard as enumerated in Shiffra. See Walther, 2001 WI App 23, ¶ 10 (rejecting the argument that other court of appeals’ cases imposed a heightened standard). We conclude that this is a correct interpretation of Shiffra and was certainly the standard that was in place, pursuant to Munoz, at the time of the motion hearing in Green‘s case.
¶ 31. Second, we emphasize that the defendant in this case is trying to make a preliminary showing to compel an in camera review by the circuit court. As such, a defendant is not required to carry the same burden as that required of the circuit court when it conducts its in camera inspection to determine whether
¶ 32. The Shiffra court appropriately rejected the materiality standard set forth in Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987) (asking whether the evidence would have had an effect on the proceeding), as difficult to apply before trial. Shiffra, 175 Wis. 2d at 607; see also State v. Richard A.P., 223 Wis. 2d 777, 785, 589 N.W.2d 674 (Ct. App. 1999). Instead, the court appropriately looked to the standard for a defendant seeking to overcome the informant privilege. This standard requires that the defendant show that the informant‘s testimony “may be necessary to a determination of guilt or innocence.” A mere possibility (“may be“) is enough in informant cases. In light of the strong public policy favoring protection of the counseling records, however, we conclude that a slightly higher standard is required before the court must conduct an in camera review of privileged counseling records. For this reason, we conclude, consistent with other state standards, that a defendant must show a “reasonable likelihood” that the records will be necessary to a determination of guilt or innocence. See Goldsmith, 651
¶ 33. Although we change this threshold showing requirement from Shiffra, we conclude that other requirements adopted by the court of appeals in similar cases remain applicable. In particular, a defendant must set forth a fact-specific evidentiary showing, describing as precisely as possible the information sought from the records and how it is relevant to and supports his or her particular defense. See, e.g., Navarro, 2001 WI App 225, ¶¶ 12, 17; Walther, 2001 WI App 23, ¶ 11. The mere contention that the victim has been involved in counseling related to prior sexual assaults or the current sexual assault is insufficient. Munoz, 200 Wis. 2d at 399. Further, a defendant must undertake a reasonable investigation into the victim‘s background and counseling through other means first before the records will be made available. From this investigation, the defendant, when seeking an in camera review, must then make a
¶ 34. Based on the above considerations, we set forth the following standard: the preliminary showing for 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. We conclude that the information will be “necessary to a determination of guilt or innocence” if it “tends to create a reasonable doubt that might not otherwise exist.” See Fuller, 667 N.E.2d at 855. This test essentially requires the court to look at the existing evidence in light of the request and determine, as the Shiffra court did, whether the records will likely contain evidence that is independently probative to the defense.
¶ 35. In creating this standard, we intend to place the burden on the defendant to reasonably investigate information related to the victim before setting forth an offer of proof and to clearly articulate how the information sought corresponds to his or her theory of defense. A good faith request will often require support through motion and affidavit from the defendant. Our standard
D. Green‘s Preliminary Showing
¶ 36. We conclude that, under either the Shiffra standard or the slightly heightened standard set forth in this opinion, any showing by Green at the circuit court was insufficient to compel the court to conduct an in camera review of N.W.‘s records. We therefore affirm the court of appeals’ conclusion.
¶ 37. At the pretrial hearing, Green merely argued that N.W.‘s counseling records could contain statements from N.W. that were inconsistent with her statements provided to the police and to social services. The mere assertion, however, that the sexual assault was discussеd during counseling and that the counseling records may contain statements that are inconsistent with other reports is insufficient to compel an in camera review. Green was required to show that the evidence
IV. SEQUESTRATION ORDER
¶ 38. Green also argues that the prosecutor violated the circuit court‘s sequestration order when she communicated with Haack during a break in trial testimony about an alleged date on which Green confessed the assault to her. This violation of the order, Green contends, resulted in prejudice to him because Haack effectively altered her testimony to more closely match other evidence presented against Green at trial. Green argues that he is now entitled to a new trial based on this рrejudicial testimony.
¶ 39. If the circuit court finds that a witness has violated the court‘s sequestration order, the court may still permit the witness to testify. The court should not allow such testimony, however, when the defendant has been prejudiced by the violation and the party calling the witness was a guilty participant in the violation. State v. Bembenek, 111 Wis. 2d 617, 637, 331 N.W.2d 616 (Ct. App. 1983).
¶ 40. Green contends that the prosecutor, not the witness, violated the sequestration order by conversing with the witness during trial. Green fails to clearly indicate, however, how any alleged conversation constituted a violation of the sequestration order. The only applicable order issued by the court limited the sequestration to “all prosecution and defense witnesses during the trial, apart from Det. Quant of the Oshkosh Police Department, who by virtue of being the lead investigator in the case should remain at the prosecution counsel table.” Such orders are issued to keep witnesses from hearing other witnesses testimony, which may lead to
¶ 41. Further, even if this discussion did constitute a violation, Green has not shown any prejudice from this violation. This conversation between Haack and the prosecutor allegedly resulted in testimony from Haack where she corrected the date on which Green had confessed the assault to her. According to Green, Haack corrected this date (to November 19, 1996) to more closely align her testimony with the date of the alleged assault (Nоvember 22, 1996). We cannot conclude that this conversation and subsequent mere clarification testimony from Haack had any significant effect on the overall trial or resulted in prejudice to Green—particularly considering that this was the third date that Haack had given for the alleged confession and Green‘s defense counsel showed the inconsistency in Haack‘s statements on cross-examination. As a result, we affirm the court of appeals’ ruling on this issue, which upheld the circuit court‘s finding of no error.
V. CONCLUSION
¶ 42. In sum, we conclude that Green‘s conviction should be upheld. Under any applicable standard, Green failed to show that he was entitled to an in
By the Court.—The decision of the court of appeals is affirmed.
¶ 43. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (concurring). In the presеnt case, the defendant argues that the State violated the circuit court‘s witness “sequestration” order when the prosecutor communicated with a State‘s witness during a break in that witness‘s trial testimony.1 If the attorney violated the court order, the error was harmless.
¶ 44. I write separately to urge that exclusion and separation orders be stated with particularity to avoid misunderstandings.2 Although the practice of limiting a witness‘s access to other witnesses can be traced to English and Germanic law,3 many open questions remain about the limitations a court may prescribe.
¶ 46. “Exclusion” means to remove witnesses from a courtrоom and, according to
¶ 48. The aim of exclusion and separation orders is to exercise restraint on witnesses tailoring their testimony to thаt of earlier witnesses; to detect testimony that is less than candid; and, when a witness‘s testimony is interrupted by a recess, to prevent improper attempts to influence the testimony in light of the testimony already given.8
¶ 49. Courts imposing a separation or exclusion order and parties seeking such an order should specify the scope of the order so as to prevent potential misunderstandings, including whether the order limits communications between witnesses and attorneys. Thus, a circuit court might state, for example, which witnesses the order applies to, how long the order applies with respect to each witness, whether the witnesses should remain physically separate, whether the witnesses should not discuss the case or their testimony
¶ 50. For the reasons set forth, I write separately.
¶ 51. I am authorized to state that Justice N. PATRICK CROOKS joins this opinion.
Notes
(2) General rule of privilege. 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, among the patient, the patient‘s physician, the patient‘s registered nurse, the patient‘s chiropractor, the patient‘s psychologist, the patient‘s social worker, the patient‘s marriage and family therapist, the patient‘s professional counselor or persons, including members of the patient‘s family, who are participating in the diagnosis or treatment under the direction of the physician, registered nurse,
chiropractor, psychologist, social worker, marriage and family therapist or professional counselor.Identity of informer. (1) Rule of privilege. The federal government or a state or subdivision thereof has a privilege to rеfuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of law to a law enforcement officer....
According to- A party who is a natural person.
- An officer or employee of a party which is not a natural person designated as its representative by its attorney.
- A person whose presence is shown by a party to be essential to the presentation of the party‘s cause.
- A victim, as defined in s. 950.02(4) in a сriminal case or a victim, as defined in s. 938.02(20m) in a delinquency proceeding under ch. 938, unless the judge or circuit court commissioner finds that exclusion of the victim is necessary to provide a fair trial for the defendant or a fair fact-finding hearing for the juvenile. The presence of a victim during the testimony of other witnesses may not by itself be a basis for a finding that exclusion of the victim is necessary to provide a fair trial for the defendant or a fair fact-finding hearing for the juvenile.
(3) Exceptions.
....
(b) Testimony on merits. If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of the issue of guilt or innocence in a criminal case... and... a state... invokes the privilege, the judge shall give the... state... an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. Fletcher v. State, 68 Wis. 2d 381, 388, 228 N.W.2d 708 (1975); Abraham v. State, 47 Wis. 2d 44, 54, 176 N.W.2d 349 (1970); Ramer v. State, 40 Wis. 2d 79, 82-83, 161 N.W.2d 209 (1968).