A Man Seated On A Couch, Leaning Forward With His Elbows On His Knees and His Hands Steepled, While A Man In A White Coat Seated Across From Him Ticks A Box On A Form Clipped To A Clipboard

June 13, 2023 – The Wisconsin Supreme Court has overruled a 30-year-old Wisconsin Court of Appeals decision that granted criminal defendants the right to seek in camera review of a victim’s medical records.

In State v. Johnson, 2023 WI 39 (May 16, 2023), the supreme court held (5-2) that the court of appeals decisions was unsound in principle and unworkable in practice.

Justice Rebecca Dallet wrote the majority opinion, joined by Justice Patience Roggensack, Justice Brian Hagedorn, Justice Jill Karofsky, and Justice Rebecca Bradley (¶¶ 2-22 and 25-29).Justice Karofsky and R. Bradley each wrote a concurring opinion. Justice Ann Walsh Bradley dissented, joined by Chief Justice Annette Ziegler.

Motion for In Camera Review

In 2017, the Waupaca County District Attorney charged Alan Johnson with ten felonies based on claims that Johnson had sexually assaulted his son (T.A.J.) and daughter (K.L.J).

Jeff M. Brown
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.

Before the trial commenced, Johnson sought an in camera review of T.A.J.’s mental health and counseling records, citing two court of appeals cases: State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Wis. Ct. of App. 1993) and State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298.

Acting through his guardian ad litem, T.A.J. opposed Johnson’s motion for an in camera review. But the Waupaca County Circuit Court ruled that T.A.J. lacked standing.

T.A.J. appealed. The court of appeals reversed, holding that T.A.J. had standing under Marsy’s Law, a victims’ rights amendment to the Wisconsin Constitution approved in 2020.

Johnson appealed.

Court-created Exception to Privilege

Justice Dallet began her opinion for the majority by noting that in Shiffra, the court of appeals created an exception to the doctor-patient privilege established by Wis. Stat. section 905.04(2).

Under that exception (as modified by Green), Dallet explained, a criminal defendant is entitled to an in camera review of a victim’s privately-held health records if the defendant shows that: 1) the records are material to his or her defense; and 2) there is a reasonable likelihood that the records will be necessary to a determination of guilt or innocence.

Dallet pointed out that the supreme court is not bound by court of appeals decisions. But she noted, the supreme court had on several occasions cited Shiffra with approval.

Consequently, Justice Dallet concluded that Shiffra should be overruled only if one or more of five special justifications applied – the rubric used for deciding whether to overrule a supreme court decision.

Shiffra Court Mis-read Ritchie

Dallet concluded that three special justifications existed for overruling Shiffra.

First, Shiffra was unsound in principle because it relied upon an erroneous interpretation of a U.S. Supreme Court decision, Pennsylvania v. Ritchie.

In Ritchie, the Supreme Court held that a criminal defendant charged with assaulting his daughter had a constitutional right to examine confidential records held by a state child protective services agency tasked with investigating cases of alleged mistreatment.

In Johnson’s case, Justice Dallet pointed out, the state did not possess the records. That distinction was meaningful, Dallet reasoned, because Ritchie’s holding was based on an extension of Brady v. Maryland, a U.S. Supreme Court case that requires prosecutors to turn over to defendants exculpatory material in their possession.

“Indeed, as many other courts have said, Ritchie simply does not apply to privately held records,” Justice Dallet wrote.

Dallet also pointed out that the records in Shiffra were subject to a confidentiality statute, while those in Ritchie were subject to a privilege statue.

Unsound Policy; Unworkable in Practice

Justice Dallet also concluded that Shiffra must be overruled because the rule it adopted undermines the patient-therapist relationship.

“A patient’s willingness to discuss sensitive issues will be chilled if she knows that her most private thoughts and fears might be revealed to a circuit court judge in the context of a criminal case,” Dallet wrote.

And, she reasoned, theShiffra rule was unworkable in practice because it was incapable of being consistently applied and was inherently speculative.

“When a Shiffra motion is filed, neither the defendant, the state, nor the circuit court have seen the victim’s treatment records,” Justice Dallet wrote.

“Yet the circuit court must decide, often based on vague allegations and an affidavit from the defendant, whether it is reasonably likely that records the judge has never seen contain information ‘necessary to the determination of guilt or innocence.’”

R. Bradley Concurrence: Respect Separation of Powers

In her concurrence, Justice R. Bradley wrote that she could not join the majority opinion in full because the majority failed to respect the separation of powers mandated by the Wisconsin Constitution.

If Shiffra’s rationale was unsound, R. Bradley argued, it was because the court appeals has no lawmaking power – not because the policy reasoning underlying the decision was unsound.

“The majority acknowledges that ‘courts of course lack[ ] the power to re-write statutes in the name of public policy,’” Justice R. Bradley wrote. “Assuming any discussion of this supposed alternative rationale is necessary, it should end with this acknowledgement.”

Karofsky Concurrence: Shiffra Unworkable

In her concurrence, Justice Karofsky, called upon the facts in Shiffra to illustrate how Shiffra’s rule – which bars a victim from testifying if he or she won’t consent to the disclosure of his or her medical records – was unworkable.

The 33-year-old victim in Shiffra, Karofsky pointed out, had begun counseling when she was six years old.

“Twenty-seven years of vulnerabilities, traumas, and personal struggles, all laid bare in front of the court,” Justice Karofsky wrote.

A.W. Bradley Dissent: Shiffra Rule is Workable

In her dissent, Justice A.W. Bradley argued that the majority had cast aside a criminal procedure long relied upon by litigants, without creating a replacement.

“The procedure is well established and has proven to be a workable means of balancing the important interests at stake,” A.W. Bradley wrote.

She also argued that in overruling Shiffra, the majority had given insufficient deference to the principle of stare decisis.

“This court has relied on and reaffirmed Shiffra to a significant extent,” Justice A.W. Bradley wrote. “Stare decisis weighs heavily in such a situation.”