State v. Alan S. Johnson
2023 WI 39 (2023)
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Rule of Law:
Criminal defendants do not have a due process right to obtain in camera judicial review of a victim's privately held, statutorily privileged health records upon a preliminary showing of materiality. The Shiffra procedure, which allowed such review and sanctioned victims who refused by precluding their testimony, is hereby overruled as unsound in principle, unworkable in practice, and detrimental to coherence in the law.
Facts:
- Alan S. Johnson was charged with several felonies, including sexually assaulting his daughter, K.L.J., and his son, T.A.J.
- In the criminal proceedings, Johnson sought in camera review of T.A.J.'s mental health and counseling records, which were privately held.
- T.A.J. submitted a brief in opposition to Johnson's motion to access his records.
- T.A.J.'s records were statutorily privileged under Wis. Stat. § 905.04(2), protecting confidential communications made for diagnosis or treatment.
Procedural Posture:
- Alan S. Johnson was charged with several felonies in Waupaca County Circuit Court (the trial court/court of first instance).
- Johnson filed a motion for in camera review of T.A.J.'s mental health and counseling records.
- The Waupaca County Circuit Court (Judge Raymond S. Huber) denied T.A.J.'s request to oppose the motion, ruling that T.A.J. lacked standing.
- T.A.J. (appellant) filed an interlocutory appeal to the Wisconsin Court of Appeals (an intermediate appellate court).
- The Wisconsin Court of Appeals reversed the circuit court's decision, holding that the state constitution (Marsy's Law) gave crime victims standing to oppose Shiffra motions.
- Johnson (defendant-respondent-petitioner) petitioned the Wisconsin Supreme Court for review.
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Issue:
Does a criminal defendant have a due process right to an in camera review of a victim's privately held, statutorily privileged health records upon a preliminary showing of materiality?
Opinions:
Majority - Rebecca Frank Dallet, J.
No, a criminal defendant does not have a due process right to obtain in camera judicial review of a victim's privately held, statutorily privileged health records upon a preliminary showing of materiality. The Court overrules State v. Shiffra, which established such a procedure, on three grounds. First, Shiffra is unsound in principle because it incorrectly applied Pennsylvania v. Ritchie, a U.S. Supreme Court case concerning confidential state-held records, to privately held, statutorily privileged records not in the state's possession. Ritchie was rooted in Brady v. Maryland's disclosure obligation for evidence in the state's possession, which does not extend to private records. Shiffra also impermissibly created a judicial exception to Wis. Stat. § 905.04(2)'s patient-health care provider privilege, which only contains narrow statutory exceptions, and its rule undermines the essential atmosphere of confidence and trust in the therapist-patient relationship. Second, Shiffra is unworkable in practice because the standard for obtaining in camera review, as refined by State v. Green, is inherently speculative and leads to inconsistent application across courts. Judges must determine the 'reasonable likelihood' of relevant, non-cumulative information without having seen the records, often resolving close calls in favor of review, despite appellate criticism for considering 'possibilities.' Third, Shiffra is detrimental to coherence in the law as it reflects an outdated skepticism toward victims, particularly in sexual assault and domestic violence cases, conflicting with modern legal developments removing procedural and evidentiary barriers to prosecution (e.g., rape shield laws, expert testimony on delayed reporting). Furthermore, the expansion of victims' rights laws, including Wisconsin's Marsy's Law (Wis. Const. art. I, § 9m) and Wis. Stat. § 950.04, which guarantee victim privacy and fair treatment, directly undermine Shiffra's rationale by elevating victim interests beyond mere governmental confidentiality.
Concurring - Rebecca Grassl Bradley, J.
The court of appeals in Shiffra reached an objectively wrong holding based on unsound reasoning and should be overruled. The decision fundamentally misunderstood the state action doctrine of the Fourteenth Amendment's Due Process Clause, which only applies to state actions, not the withholding of records by private parties. U.S. Supreme Court precedents like Brady v. Maryland and Pennsylvania v. Ritchie are specifically limited to evidence in the government's possession. The majority's additional discussion of public policy reasons for overruling Shiffra is inappropriate, as the judiciary lacks general lawmaking power; policy decisions and statutory exceptions are the prerogative of the legislature. While this court previously 'approved' Shiffra, this was often based on a now-defunct rule that incorrectly treated court of appeals decisions as binding precedent. The objective legal error in Shiffra's constitutional interpretation alone provides sufficient justification for overruling it.
Concurring - Jill J. Karofsky, J.
I fully join the majority opinion and concur to emphasize the practical unworkability of the Shiffra framework. Shiffra created an untenable dilemma for victims: either disclose deeply personal mental health records, thereby destroying the crucial trust in the therapist-patient relationship, or be barred from testifying against their alleged perpetrators. This often resulted in perpetrators avoiding accountability through reduced charges or dismissed cases. Drawing on case examples like Shiffra, State v. S.C. Johnson, and State v. Lynch, the concurring opinion demonstrates how defendants filed speculative, broad requests for years, even decades, of victim therapy records, often based on flawed assumptions (e.g., lack of disclosure to a therapist implying non-abuse, despite high rates of delayed reporting). These cases illustrate how the Shiffra procedure was never a 'balanced' approach but rather a tool that allowed harassment and intimidation, effectively silencing victims by forcing them to choose between privacy and justice.
Dissenting - Ann Walsh Bradley, J.
The Shiffra procedure, a decades-old framework that has served as a workable means of balancing the rights of both criminal defendants and victims, should not be discarded. The majority unduly minimizes the principle of stare decisis; this court has consistently applied, reaffirmed, and explicitly declined to overrule Shiffra in numerous prior cases, including State v. Solberg, State v. Green, and several State v. Johnson and State v. Lynch decisions. The assertion that Shiffra is unsound in principle is flawed because Pennsylvania v. Ritchie did not foreclose its application to privately held records, and many other state courts have extended Ritchie similarly. Furthermore, Wis. Const. art. I, § 9m (Marsy's Law) explicitly states it cannot 'supersede a defendant's federal constitutional rights,' which Shiffra sought to protect. The claim that Shiffra is unworkable due to inconsistent application is unconvincing, as differing judicial conclusions on similar facts do not inherently render a legal standard unworkable. The majority incorrectly dismisses the defendant's constitutional right to present a complete defense, for which in camera review serves as a vital means. Finally, the argument that Shiffra has been undermined by legal developments is weak, as many cited 'developments' (e.g., rape shield laws, Clark, Jensen) predate Shiffra or are not directly contradictory. Overruling Shiffra risks impairing the truth-seeking function of courts and departs from the foundational principle that it is better for the guilty to go free than for one innocent person to suffer.
Analysis:
This decision represents a significant shift in Wisconsin's criminal justice landscape, particularly for sexual assault and domestic violence cases. By eliminating the Shiffra procedure, the Wisconsin Supreme Court has prioritized victim privacy and the integrity of the therapist-patient relationship, potentially encouraging more victims to seek treatment and report crimes without fear of their most sensitive information becoming part of a legal proceeding. However, this ruling also removes a discovery tool that criminal defendants previously used to seek potentially exculpatory or impeachment evidence, raising questions about its impact on the defendant's constitutional right to present a complete defense. The decision clarifies that the U.S. Supreme Court's Ritchie precedent is strictly limited to state-possessed records, firmly establishing the Wis. Stat. § 905.04 privilege against judicial exceptions and highlighting a broader trend towards strengthening victims' rights.
