State v. Alan S. Johnson

2023 WI 39, 990 N.W.2d 174, 407 Wis. 2d 195

• Court: Wisconsin Supreme Court
• Decided: May 16, 2023
• Docket: 2019AP000664-CR
• Status: Published

Opinion

2023 WI 39

SUPREME COURT OF WISCONSIN CASE NO.: 2019AP664-CR

COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, T. A. J., Appellant, v. Alan S. Johnson, Defendant-Respondent-Petitioner.

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 394 Wis. 2d 807, 951 N.W.2d 616 PDC No: 2020 WI App 73 - Published

OPINION FILED: May 16, 2023 SUBMITTED ON BRIEFS: ORAL ARGUMENT: September 6, 2022

SOURCE OF APPEAL: COURT: Circuit COUNTY: Waupaca JUDGE: Raymond S. Huber

JUSTICES: DALLET, J., delivered the majority opinion of the Court, in which ROGGENSACK, HAGEDORN, and KAROFSKY, JJ., joined, and REBECCA GRASSL BRADLEY, J., joined with respect to ¶¶2-22 and 25-29. REBECCA GRASSL BRADLEY, J., filed a concurring opinion. KAROFSKY, J., filed a concurring opinion. ANN WALSH BRADLEY, J., filed a dissenting opinion in which ZIEGLER, C.J., joined.

NOT PARTICIPATING:

ATTORNEYS:

For the defendant-respondent-petitioner, there were briefs filed by Nathan J. Wojan and Petit & Dommershausen, S.C., Menasha. There was an oral argument by Nathan J. Wojan. For the appellant, there were briefs filed by Andrea K. Rufo and Legal Action of Wisconsin, Inc., Racine. There was an oral argument by Andrea K. Rufo.

For the plaintiff-respondent, there were briefs filed by Sarah L. Burgundy and Lisa E.F. Kumfer, assistant attorneys general, with whom on the briefs was Joshua L. Kaul, attorney general. There was an oral argument by Sarah L. Burgundy, assistant attorney general.

Amicus curiae briefs were filed by Katie R. York, appellate division director, with whom on the briefs was Kelli S. Thompson, state public defender, for the Wisconsin State Public Defender. There was an oral argument by Katie R. York, appellate division director.

An amicus curiae brief was filed by Erika Jacobs Petty and Lotus Legal Clinic, Brookfield, for Lotus Legal Clinic, Wisconsin Coalition Against Sexual Assault, and the National Crime Victim Law Institute at Lewis & Clark Law School.

Amicus curiae briefs were filed by Ellen Henak, Robert R. Henak, and Henak Law Office, S.C., Milwaukee, for the Wisconsin Association of Criminal Defense Lawyers.

2 2023 WI 39 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2019AP664-CR (L.C. No. 2017CF0056)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent,

T. A. J., FILED Appellant, May 16, 2023

v. Sheila T. Reiff Clerk of Supreme Court

Alan S. Johnson,

Defendant-Respondent-Petitioner.

DALLET, J., delivered the majority opinion of the Court, in which ROGGENSACK, HAGEDORN, and KAROFSKY, JJ., joined, and REBECCA GRASSL BRADLEY, J., joined with respect to ¶¶2-22 and 25-29. REBECCA GRASSL BRADLEY, J., filed a concurring opinion. KAROFSKY, J., filed a concurring opinion. ANN WALSH BRADLEY, J., filed a dissenting opinion in which ZIEGLER, C.J., joined.

REVIEW of a decision of the Court of Appeals. Reversed and

remanded.

¶1 REBECCA FRANK DALLET, J. Patients have a statutory

privilege to prevent disclosure of confidential communications

with their health care provider that are made for the purposes of diagnosis or treatment. See Wis. Stat. § 905.04(2) (2019- No. 2019AP664-CR

20).1 In State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct.

App. 1993), however, the court of appeals created a process by

which a criminal defendant could obtain a limited review by the

court (in camera review) of a victim's privately held, otherwise

privileged health records.2 The State and a victim in a pending

criminal case, T.A.J., ask us to revisit Shiffra, arguing that

it was wrongly decided, is unworkable, and its rationale has

been undermined by subsequent developments in the law. We

agree, and therefore overrule Shiffra.3

All subsequent references to the Wisconsin Statutes are to 1

the 2019-20 version unless otherwise indicated.

Even though a Shiffra motion could in theory seek in 2

camera review of any witness's records, as a practical matter, such motions almost always seek review of the victim's records. See Wis. Stat. § 950.02(4)(a) (defining "victim"). For that reason, and for simplicity, we refer to the privilege-holder as the "victim" throughout this opinion.

Although many subsequent cases have applied Shiffra, we 3

overrule those cases only to the extent they can be read to permit in camera review of privately held, privileged health records in a criminal case upon a showing of materiality. See, e.g., State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298; State v. Rizzo, 2002 WI 20, 250 Wis. 2d 407, 640 N.W.2d 93; State v. Solberg, 211 Wis. 2d 372, 564 N.W.2d 775 (1997); State v. Behnke, 203 Wis. 2d 43, 553 N.W.2d 265 (Ct. App. 1996); State v. S.H., 159 Wis. 2d 730, 465 N.W.2d 238 (Ct. App. 1990); Rock Cnty. Dep't of Soc. Servs. v. DeLeu, 143 Wis. 2d 508, 422 N.W.2d 142 (Ct. App. 1988). As explained more fully below, we hold that Shiffra incorrectly concluded that the United States Supreme Court's decision in Pennsylvania v. Ritchie, 480 U.S. 39 (1987) applied to privately held, privileged health records. Nevertheless, nothing in our opinion should be read as questioning Ritchie itself.

2 No. 2019AP664-CR

I

¶2 Johnson was charged with several felonies in

connection with allegedly sexually assaulting his daughter,

K.L.J., and his son, T.A.J. He sought in camera review of

T.A.J.'s mental health and counseling records,4 citing Shiffra

and State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298.5

Although the State did not take a position on the motion for in

camera review, T.A.J. submitted a brief in opposition. Johnson

argued, and the circuit court6 agreed, that T.A.J. lacked

standing to oppose the motion.7

¶3 The court of appeals reversed the circuit court's

decision in an interlocutory appeal, holding that a 2020

amendment to the Wisconsin Constitution, Marsy's Law, gave crime

victims like T.A.J. standing to oppose Shiffra motions. See

State v. Johnson, 2020 WI App 73, ¶¶26, 46-47, 394 Wis. 2d 807,

951 N.W.2d 616; see also Wis. Const. art. I, § 9m.

4 Johnson also sought in camera review of K.L.J.'s privately held mental health treatment records. Like T.A.J., the circuit court subsequently concluded that K.L.J. lacked standing to oppose Johnson's motion. Because K.L.J. did not appeal the circuit court's decision on standing, only T.A.J.'s arguments are before us. 5 As explained below, Green refined the standard for obtaining in camera review of privately held, privileged health records announced in Shiffra. 6 The Honorable Raymond S. Huber of the Waupaca County Circuit Court presided. 7 The circuit court has not yet ruled on Johnson's motion for in camera review of T.A.J.'s records, and this case remains in a pre-trial posture.

3 No. 2019AP664-CR

¶4 After we granted Johnson's petition for review, the

parties' briefs understandably focused on the issue of whether

T.A.J. has standing to oppose Johnson's motion. The State also

asserted, however, that Shiffra was wrongly decided. Following

oral argument last term, we ordered the parties to file

supplemental briefs in response to a single question: "Should

the court overrule State v. Shiffra . . . ?"

II

¶5 Before tackling that question, we first provide some

background on confidentiality and privilege, the statutes that

apply to health records, and the way the statutory privilege in

§ 905.04 interacts with Shiffra and Green. We then discuss

Shiffra and the cases on which it relied.

A

¶6 Although confidentiality and privilege are related,

they are nonetheless distinct concepts. As we have previously

explained, confidential information is "that which is 'meant to be kept secret.'" In re John Doe Proceeding, 2004 WI 65, ¶15,

272 Wis. 2d 208, 680 N.W.2d 792 (quoting Black's Law Dictionary

294 (7th ed. 1999)). Privilege, meanwhile, "is a broader

concept," which includes "the legal right not to provide certain

data when faced with a valid subpoena." Id.; see also Burnett

v. Alt, 224 Wis. 2d 72, 85, 589 N.W.2d 21 (1999). "Privileges

are the exception, not the rule." Alt, 224 Wis. 2d at 85. Unless a privilege is provided by statute "or inherent or

4 No. 2019AP664-CR

implicit in statute or in rules adopted by the supreme court or

required by the constitution of the United States or Wisconsin,"

no person may refuse to be a witness or disclose "any matter,"

"any object," or any "writing." Wis. Stat. § 905.01(1)-(3); see

also State v. Gilbert, 109 Wis. 2d 501, 505, 326 N.W.2d 744

(1982) (explaining that privileges are the exception to the

"fundamental tenet of our modern legal system . . . that the

public has a right to every person's evidence").

¶7 Both of these concepts are implicated when health

records are at issue. With respect to confidentiality, Wis.

Stat. § 146.82(1) provides that "[a]ll patient health care

records shall remain confidential." And as for privilege, Wis.

Stat. § 905.04(2) states that patients have "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."

¶8 There are exceptions to these confidentiality and privilege statutes. For instance, § 146.82(2)(a)4. provides

that otherwise confidential patient health records may be

disclosed pursuant to "a lawful order of a court of record."

There is no similar generally applicable exception to the

privilege in § 905.04(2), however. Instead, § 905.04 contains

several narrow exceptions to the privilege, for example when

records are created pursuant to a court-ordered examination "for

purposes of guardianship, protective services or protective placement." § 905.04(4)(b). There is no such exception to the 5 No. 2019AP664-CR

privilege in § 905.04(2), however, for court-ordered in camera

review of a victim's privately-held, privileged health records

upon a criminal defendant's motion.

¶9 Nevertheless, the court of appeals created such an

exception in Shiffra when it held that a defendant is "entitled

to an in camera inspection" of a victim's privately-held,

otherwise privileged health records "if [the defendant] meets

the burden of making a preliminary showing of materiality."

Shiffra, 175 Wis. 2d at 607. To meet that burden, the defendant

must show "that the sought-after evidence is relevant and may be

helpful to the defense or is necessary to a fair determination

of guilt or innocence." Id. at 608. Although Shiffra said a

defendant was "entitled" to in camera review upon meeting that

burden, that was an overstatement. See id. at 607. As Shiffra

explained, unlike with a subpoena or other court-ordered

compulsory process, a victim could not be held in contempt for

refusing to allow in camera review after the defendant made an

initial showing of materiality because "[the victim] is not obligated to disclose her psychiatric records."8 See id. at 612.

Instead, once the defendant makes a showing of materiality,

victims are caught between a rock and hard place: Either turn

Shiffra referred to "psychiatric" and "mental health 8

treatment" records specifically, but the court of appeals subsequently held that Shiffra was not limited only to those types of records. See State v. Navarro, 2001 WI App 225, ¶9, 248 Wis. 2d 396, 636 N.W.2d 481. For that reason, throughout this opinion we describe Shiffra as applying generally to "health records."

6 No. 2019AP664-CR

over the privileged health records for in camera review or be

precluded from testifying at trial. See id. That remedy was,

in the Shiffra court's view, "the only method of protecting [the

defendant's] right to a fair trial . . . if [the victim] refused

to disclose her records." Id.

¶10 We raised the threshold for materiality in Green,

holding that the standard expressed in Shiffra——that the records

"may be" necessary to determine guilt or innocence——was

insufficient "[i]n light of the strong public policy favoring

protection of . . . counseling records." See Green, 253

Wis. 2d 356, ¶32. Accordingly, we held that defendants must

show "a 'reasonable likelihood' that the records will be

necessary to a determination of guilt or innocence" to obtain in

camera review of privileged health records. Id. (quoting

Goldsmith v. State, 651 A.2d 866, 877 (Md. 1995)).

Additionally, we explained that the evidence sought must not be

"cumulative to other evidence available to the defendant," and

that it is the defendant's duty "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." Id., ¶¶34-35.

¶11 The upshot of Shiffra and Green is that a defendant

may obtain an in camera review of a victim's health records——

despite the statutory privilege against disclosure——if he shows

a reasonable likelihood that the records are not cumulative and

are "necessary" to a determination of guilt or innocence. See id. ¶32. And if the victim does not submit his or her records 7 No. 2019AP664-CR

for that in camera review, then he or she may not testify at

trial. See Shiffra, 175 Wis. 2d at 612.

B

¶12 Shiffra created this framework based on its reading of

a United States Supreme Court decision, Pennsylvania v. Ritchie,

480 U.S. 39 (1987), and two court of appeals decisions that

discussed Ritchie, Rock County Department of Social Services v.

DeLeu, 143 Wis. 2d 508, 422 N.W.2d 142 (Ct. App. 1988) and State

v. S.H., 159 Wis. 2d 730, 465 N.W.2d 238 (Ct. App. 1990).

¶13 Ritchie addressed whether a criminal defendant had a

right to access confidential——not privileged——records from a

state child protective services agency responsible for

"investigating cases of suspected mistreatment and neglect."

480 U.S. at 43. After an investigation by that agency, Ritchie

was charged with repeatedly assaulting his daughter. Id.

Before trial, he served the agency with a subpoena for its

investigative records. Id. The agency refused to comply, however, noting that state law required that the records remain

confidential unless a court ordered otherwise. See id. at 43-

44. The trial court denied Ritchie's motion for disclosure of

the records and he was convicted at trial. Id. at 44-45.

¶14 Ritchie appealed, arguing that the failure to disclose

the contents of the agency's file violated his Sixth and

Fourteenth Amendment rights. See id. at 45. The United States

Supreme Court held that Ritchie's due process rights were violated, drawing heavily on Brady v. Maryland, 373 U.S. 83

8 No. 2019AP664-CR

(1963), which requires that the prosecution turn over to the

defendant evidence in its possession that is favorable to the

accused and material to his defense. See Ritchie, 480 U.S. at

56-58; see also Brady, 373 U.S. at 87. The Ritchie Court

seemingly assumed that the evidence satisfied Brady's possession

requirement, perhaps because the agency that held the records

was responsible for investigating child abuse cases. See

Ritchie, 480 U.S. at 57; see also Strickler v. Greene, 527 U.S.

263, 281 (1999) (stating that evidence in the government's

"possession" for Brady purposes includes "'favorable evidence

known to others acting on the government's behalf in th[e]

case'" (quoting Kyles v. Whitley, 514 U.S. 419, 437 (1995)). It

then explained that Brady's materiality requirement was

difficult to evaluate because neither the parties nor the court

had reviewed the files. Ritchie, 480 U.S. at 57. As a

workaround, the Court held that in camera review was the

appropriate way to assess the materiality of the confidential

records, in part because state law did not guarantee confidentiality in all circumstances. See id. 57-61. Instead,

state law "contemplated some use of [agency] records in judicial

proceedings," namely after a court order. Id. at 58. Thus,

Ritchie held that "[the defendant's] interest (as well as that

of the Commonwealth) in ensuring a fair trial can be protected

fully by requiring that the [agency's] files be submitted only

to the trial court for in camera review." Id. at 60.

¶15 Two court of appeals decisions discussed Ritchie before Shiffra was decided. The first, DeLeu, dealt with the 9 No. 2019AP664-CR

statutory requirements for releasing a county department of

social services' files for use in a criminal case. See 143

Wis. 2d at 509. Like the records in Ritchie, the department's

files were confidential——not privileged——and subject to

disclosure "by order of the court." Id. at 510 (quoting Wis.

Stat. § 48.78(2)(a) (1987-88)); see also Ritchie, 480 U.S. at

43-44. The court of appeals concluded that the orders directing

disclosure of the department's files were invalid because the

statutory procedure for releasing them was not followed. See

DeLeu, 143 Wis. 2d at 510-11. Additionally, the court of

appeals noted that Ritchie was not implicated because the

criminal defendant who sought release of the department's files

"ha[d] not moved the trial court in his criminal cases to make

an in camera review of the agency records." Id. at 510.

Nevertheless, DeLeu gave a broad description of Ritchie's

holding, stating "that a criminal defendant is entitled to an in

camera review by the trial court of confidential records if

those records are material to the defendant's defense," and "that [the defendant] is entitled to such a review . . .

provided he makes a preliminary showing that the files contain

evidence material to his defense." Id. (citing Ritchie, 480

U.S. at 60-61).

¶16 The court of appeals relied on that broad language in

a subsequent case, S.H., suggesting for the first time that the

reasoning of Ritchie and DeLeu also applied to health records

that are privileged under § 905.04——not merely confidential——and not in the State's possession. See S.H., 159 Wis. 2d at 737-38. 10 No. 2019AP664-CR

In S.H., the defendant was charged with sexually assaulting his

three children. Id. at 733. Before trial, he signed medical

release forms pursuant to Wis. Stat. § 51.30(5)(a) (1989-90)9

seeking release of his children's records from a private

counseling center. The children's guardian ad litem invoked the

privilege against the disclosure of health records contained in

§ 905.04, and the trial court blocked the records' release. See

S.H., 159 Wis. 2d at 734; see also § 51.30(6) (stating that

§ 905.04 "supersede[s] [§ 51.30] with respect to communications

between physicians and patients"). Although the court of

appeals agreed that the records were privileged and that the

release form did not authorize disclosure, it nonetheless stated

that Ritchie "controls [the defendant's] constitutional right to

compel disclosure of confidential records," and that "if a

defendant makes a preliminary showing that the records contain

evidence material to his defense, he is entitled to an in camera

review by the trial court of those records." S.H., 159

Wis. 2d at 737-38 (citing DeLeu, 143 Wis. 2d at 511).10 ¶17 That brings us back to Shiffra, which relied on

Ritchie, DeLeu, and S.H. to conclude that a criminal defendant

is entitled to an in camera review of a victim's privately held,

9 All statutory citations in this paragraph are to the 1989- 90 version. 10Because the defendant did not appeal a circuit court decision denying in camera review, however, S.H. did not address whether the defendant made the preliminary showing necessary to obtain in camera review of the counseling records. See 159 Wis. 2d at 738.

11 No. 2019AP664-CR

privileged health records if he or she "make[s] a preliminary

showing that the sought-after evidence is material to his or her

defense." Shiffra, 175 Wis. 2d at 605. The court of appeals

explained that "Wisconsin precedent . . . clearly makes Ritchie

applicable to cases in which the information sought by the

defense is protected by statute and is not in the possession of

the state." Id. at 606-07 (citing DeLeu, 143 Wis. 2d at 511;

S.H., 159 Wis. 2d at 736). For that reason, the court dismissed

the State's argument that the victim's "psychiatric history

[and] psychiatric records" differed from the records in Ritchie

because they were privileged against disclosure under § 905.04,

not merely confidential, and were not in the State's possession.

See id. at 603, 606-07. Additionally, the court held that

suppression of the victim's testimony at trial was the only

appropriate remedy for her refusal to release the records for in

camera review since she was not "obligated to disclose her

psychiatric records," and therefore could not be held in

contempt. Id. at 612.

III

¶18 The question is whether we should overrule Shiffra.

To answer that question, we must first address the role of stare

decisis in our analysis.

¶19 We have repeatedly recognized the importance of stare decisis to the rule of law. See, e.g., State v. Denny, 2017 WI

12 No. 2019AP664-CR

17, ¶69, 373 Wis. 2d 390, 891 N.W.2d 144; State v. Luedtke, 2015

WI 42, ¶40, 362 Wis. 2d 1, 863 N.W.2d 592. That is why we

require a special justification in order to overturn our

precedent. See Johnson Controls, Inc. v. Employers Ins. of

Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665 N.W.2d 257

(quoting Schultz v. Natwick, 2002 WI 125, ¶37, 257 Wis. 2d 19,

653 N.W.2d 266).

¶20 We have specifically identified five such special

justifications. See State v. Young, 2006 WI 98, ¶51 n.16, 294

Wis. 2d 1, 717 N.W.2d 729. A special justification for

overruling precedent exists when: (1) the law has changed in a

way that undermines the prior decision's rationale; (2) there is

a "need to make a decision correspond to newly ascertained

facts;" (3) our precedent "has become detrimental to coherence

and consistency in the law;" (4) the decision is "unsound in

principle;" or (5) it is "unworkable in practice." Id. (citing

Johnson Controls, 264 Wis. 2d 60, ¶¶98-99). Any one of these

special justifications is sufficient to justify overruling precedent. See State v. Roberson, 2019 WI 102, ¶50, 389

Wis. 2d 190, 935 N.W.2d 813. But we have never required a

special justification to overturn a decision of the court of

appeals. See State v. Lira, 2021 WI 81, ¶45, 399 Wis. 2d 419,

966 N.W.2d 605. Since Shiffra is a court of appeals decision,

we therefore do not need a special justification to overrule it.

¶21 That being said, Shiffra is unlike most court of

appeals decisions because on three prior occasions we signaled that we approved of it. The first time was in State v. Solberg, 13 No. 2019AP664-CR

211 Wis. 2d 372, 564 N.W.2d 775 (1997), where we recited the

materiality standard in Shiffra and said that "giving the

defendant an opportunity to have the circuit court conduct an in

camera review of the privileged records, while still allowing

the patient to preclude that review, addresse[d] both the

interests of the defendant and the patient." Id. at 383, 387.

The second was in State v. Rizzo, 2002 WI 20, 250 Wis. 2d 407,

640 N.W.2d 93, where the defendant argued that he was entitled

to access a victim's treatment records even after the circuit

court did an in camera review because it was necessary to

conduct an effective cross-examination of the victim's

therapist, who testified at trial as a Jensen11 witness. Id.,

¶48. We rejected that claim because it would have upset the

balance Shiffra struck between "the victim’s interest in

confidentiality [and] the constitutional rights of the

defendant." Id., ¶53. Neither Solberg nor Rizzo examined the

basis for the court of appeals' holding in Shiffra, however, and

instead took its framework as a given. We went further though in a third case, Green, and rejected the State's argument that

Shiffra was wrongly decided. But we did so only because Solberg

and Rizzo had "recognized the validity of Shiffra." Green, 253

Wis. 2d 356, ¶21 n.4. Nevertheless, Green, Solberg, and Rizzo

never did what the State and T.A.J. ask us to do in this case:

See State v. Jensen, 147 Wis. 2d 240, 250, 432 N.W.2d 913 11

(1988) (explaining that expert testimony that a sexual assault victim's behavior is consistent with the behavior of sexual assault victims generally may be admissible).

14 No. 2019AP664-CR

analyze whether Shiffra was wrongly decided. See Green, 253

Wis. 2d 356, ¶21 n.4; see also Rizzo, 250 Wis. 2d 407, ¶53;

Solberg, 211 Wis. 2d at 386-87.

¶22 We have on two prior occasions, however, been asked to

perform that analysis. In both State v. Johnson, 2014 WI 16,

¶13, 353 Wis. 2d 119, 846 N.W.2d 1 (per curiam) and State v.

Lynch, 2016 WI 66, ¶¶6-8 371 Wis. 2d 1, 885 N.W.2d 89 (lead

op.), the State argued that Shiffra was wrongly decided and

should be overturned. And each time, the court was too divided

to reach a majority holding. See Lynch, 371 Wis. 2d 1, ¶7

(stating that three justices would have overruled Shiffra, one

would have applied it as it was, and three would have modified

it in various ways); Johnson, 353 Wis. 2d 119, ¶¶7-11

(explaining that, of the five participating justices, two would

have modified Shiffra, two would have reaffirmed it, and one

would have overruled it). As Johnson and Lynch demonstrate, the

validity of Shiffra remains an open question, and one on which

there has been substantial disagreement. Nevertheless, because we arguably applied Shiffra in several prior cases, we assume

without deciding that the framework Shiffra articulated should

be treated as precedent from this court, and that we may

overrule it only if there is a "special justification" for doing

so. See Young, 294 Wis. 2d 1, ¶51.

¶23 We conclude that there are three special justifications for overruling Shiffra. First, Shiffra is

15 No. 2019AP664-CR

unsound in principle because it incorrectly concluded that

Ritchie applied to privileged (not just confidential) records

not in the State's possession and because it undermines the

therapist-patient relationship. Second, the standard for

obtaining in camera review articulated in Shiffra and Green is

unworkable in practice. And third, Shiffra has been undermined

by the adoption of new statutory and constitutional provisions

protecting the rights of victims, and is now detrimental to

coherence in the law. See, e.g., Wis. Const. art. I, § 9m; Wis.

Stat. § 950.04.

¶24 Shiffra is unsound in principle because it incorrectly

concluded that Ritchie applied to privately held and statutorily

privileged health records. See Roberson, 389 Wis. 2d 190, ¶51

("A decision is unsound in principle when it relies on an

erroneous understanding of United States Supreme Court decisions

. . . because the misunderstanding and faulty application risk perpetuating erroneous declarations of the law." (internal

alterations and quotation marks omitted)). Additionally,

Shiffra's alternative, public-policy based rationale is unsound

in principle because it undermines the therapist-patient

relationship. See Shiffra, 175 Wis. 2d at 611-12.

¶25 As explained previously, the records in Ritchie were

in the state's possession because they were held by a state

investigative agency. See Ritchie, 480 U.S. at 43. By contrast, the health records at issue in Shiffra were held by a

16 No. 2019AP664-CR

private entity and thus were entirely outside the State's

possession or control. Shiffra, 175 Wis. 2d at 607. That is a

meaningful distinction because the holding in Ritchie——that the

defendant had a due process right to an in camera review of the

agency's files——rested on Brady, which imposes a disclosure

obligation only on exculpatory and material evidence in the

state's possession. See Ritchie, 480 U.S. at 57 (citing Brady,

373 U.S. at 87). Shiffra brushed this difference aside,

however, because it believed DeLeu and S.H. "ma[de] Ritchie

defense is protected by statute and is not in the possession of

the state." Shiffra, 175 Wis. 2d at 606-07. But the portions

of DeLeu and S.H. on which Shiffra relied gave no explanation

for how the rule in Ritchie could apply to privately held

records. Indeed, as many other courts have said, Ritchie simply

does not apply to privately held records.12 See, e.g., United

States v. Hach, 162 F.3d 937, 947 (7th Cir. 1998); Vaughn v.

State, 608 S.W.3d 569, 575 (Ark. 2020); Goldsmith, 651 A.2d at 872; but see Burns v. State, 968 A.2d 1012, 1024-25 (Del. 2009).

¶26 Additionally, Shiffra and the cases preceding it did

not address the distinction between privilege and

For this reason, Ritchie also would not apply to requests 12

for in camera review of privately-held records that are merely confidential, not privileged, under Wis. Stat. § 146.82(1). Even though such records may be released "[u]nder a lawful order of a court of record," see § 146.82(2)(a)4., Ritchie does not provide defendants with a due process right to in camera review of confidential records that are not in the State's possession. See Ritchie, 480 U.S. at 57.

17 No. 2019AP664-CR

confidentiality. The records at issue in Shiffra and S.H. were

privileged under § 905.04(2), which states that "[a] patient has

a privilege to refuse to disclose and to prevent any other from

obtained or disseminated for purposes of diagnosis or

treatment." Shiffra dismissed this statutory privilege,

claiming that under S.H. and DeLeu, "a statute allowing for

confidentiality is not a barrier to in camera review." Shiffra,

175 Wis. 2d at 607. But § 905.04 is not merely a "statute

allowing for confidentiality"——it provides that certain records

are privileged from disclosure. As the text of § 905.04(2)

demonstrates, and as discussed above, confidentiality and

privilege are distinct concepts. See § 905.04(2) (granting

patients "a privilege to refuse to disclose and to prevent any

other from disclosing confidential communications." (emphasis

added)).

¶27 Shiffra overlooked this point, and in doing so,

broadened the holding in Ritchie. In Ritchie, the records at issue were confidential under a statute that specifically

allowed for disclosure pursuant to a court order. Ritchie, 480

U.S. at 43-44. Thus, Ritchie was "not a case where a state

statute grant[ed] [the agency] the absolute authority to shield

its files from all eyes." Id. 57-58. Section 905.04, in

contrast, creates a privilege without a generally applicable

exception for disclosure pursuant to a court order. Instead,

§ 905.04(4) contains a number of specific and narrow exceptions, none of which authorize disclosure for in camera review merely 18 No. 2019AP664-CR

because a criminal defendant makes a showing that the privileged

records may contain information material to his defense. In the

absence of such an exception, § 905.04(2) means what it says:

that patients "ha[ve] a privilege to refuse to disclose and to

prevent any other person from disclosing" their health records.

§ 905.04(2). We do not create exceptions to other statutory

privileges like the attorney-client privilege or the privilege

for confidential communications to members of the clergy simply

because the privileged communications may contain information

material to a criminal defendant's defense. See Wis. Stat.

§§ 905.03, 905.06. Shiffra offered no justification for its

decision to do so in the case of the patient-health care

provider privilege, and Ritchie does not provide one either.

¶28 Shiffra's references to a criminal defendant's right

to present a complete defense do not salvage its

misinterpretation of Ritchie. Shiffra correctly observed that

defendants have a due process right to a "meaningful opportunity

to present a complete defense." See Shiffra, 175 Wis. 2d at 605 (citing California v. Trombetta, 467 U.S. 479 (1984)). But

Ritchie never discussed or relied on cases involving that right.

Moreover, the United States Supreme Court has never held that

the right to present a complete defense applies before trial.

Instead, the Court has said the right applies when, for example,

state evidentiary rules arbitrarily exclude a defendant from

introducing evidence at trial without a legitimate purpose for

doing so. See Holmes v. South Carolina, 547 U.S. 319, 324-28 (2006) ("This right is abridged by evidence rules that infringe 19 No. 2019AP664-CR

upon a weighty interest of the accused and are arbitrary or

disproportionate to the purposes they are designed to serve."

(internal alterations and quotation marks omitted)). Shiffra

did not explain how the right to present a complete defense

could be implicated by a pretrial discovery motion seeking in

camera review of a victim's privately held, privileged health

records.

¶29 Simply put, nothing in Ritchie supports Shiffra's

conclusion that criminal defendants have a due process right to

in camera review of a victim's privately held, privileged health

records upon a showing of materiality.13 Accordingly, we hold

that Shiffra is unsound in principle because it incorrectly

concluded that Ritchie applied to privately held, privileged

health records. See Roberson, 389 Wis. 2d 190, ¶51.

¶30 Nevertheless, Shiffra rested on more than just its

misreading of Ritchie. It also relied on "[p]ublic policy and

the history of our judicial system" as justifying its efforts to

The dissent concedes as much, admitting that "[t]here is 13

no constitutional right to an in camera review." Dissent, ¶37. Nevertheless, the dissent suggests that overruling Shiffra is unjustified because in camera review is "a means of fulfilling" the right to present a complete defense. Id. But that gets the analysis backwards. Holding that criminal defendants have a general right to pretrial discovery, for example, might be a good way of "fulfilling" the defendant's right to present a complete defense. Yet there is still "no general constitutional right to discovery in a criminal case." See Weatherford v. Bursey, 429 U.S. 545, 559 (1977). So too with in camera review of privately held, privileged health records upon a showing of materiality. Because the Constitution does not guarantee a right to in camera review of privately held, privileged health records, Shiffra was wrong to hold otherwise.

20 No. 2019AP664-CR

balance "the sometimes competing goals of confidential privilege

and the right to put on a defense."14 Shiffra, 175 Wis. 2d at

611-12. We have described Shiffra in similar terms as well.

See Green, 253 Wis. 2d 356, ¶23 (characterizing Shiffra as

"balancing" the "competing rights and interests involved when a

defendant seeks an in camera review of privileged records"); see

also Rizzo, 250 Wis. 2d 407, ¶53. But courts of course lack the

power to rewrite statutes in the name of public policy. And

even if the court of appeals had that power, Shiffra would be

unsound in this respect as well because the rule it adopted

undermines the therapist-patient relationship.

¶31 As the United States Supreme Court explained, "[l]ike

the spousal and attorney-client privileges, the psychotherapist-

patient privilege is 'rooted in the imperative need for

confidence and trust.'" Jaffee v. Redmond, 518 U.S. 1, 10

(1996) (quoting Trammel v. United States, 445 U.S. 40, 51

(1980)). That is because "[e]ffective psychotherapy . . .

depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of

facts, emotions, memories, and fears," often about sensitive

issues. Id. The statutory privilege in § 905.04(2) protects

that atmosphere of confidence and trust by providing that

Although the Constitution, as interpreted in Ritchie, 14

does not justify Shiffra's holding, nothing in the Constitution prohibits states from adopting a similar rule. See, e.g., Iowa Code § 622.10(4) (2021) (authorizing criminal defendants to obtain in camera review of privately held, privileged health records upon a showing of materiality).

21 No. 2019AP664-CR

patients' confidential communications with their health care

providers are privileged against disclosure. See Steinberg v.

Jensen, 194 Wis. 2d 439, 459, 534 N.W.2d 361 (1995).

¶32 In camera review, even if it does not ultimately lead

to the disclosure to the defense of any privileged health

records, still undermines that statutory privilege. 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. See

Jaffee, 518 U.S. at 10 ("[T]he mere possibility of disclosure

may impede development of the confidential relationship

necessary for successful treatment."). And that is because

"'[a]n uncertain privilege, or one which purports to be certain

but results in widely varying applications by the courts, is

little better than no privilege at all.'" Id. at 18 (quoting

Upjohn Co. v. United States, 449 U.S. 383, 393 (1981)). As

other courts have recognized, in camera review "'intrudes on the

rights of the victim and dilutes the statutory privilege,'" even if that review does not lead to broader disclosure of privileged

communications. See State v. Pinder, 678 So. 2d 410, 415 (Fla.

Dist. Ct. App. 1996) (quoting State v. J.G., 619 A.2d 232, 237

(N.J. Super. Ct. App. Div. 1993)); see also In re Crisis

Connection, Inc., 949 N.E.2d 789, 802 (Ind. 2011); Commonwealth

v. Kennedy, 604 A.2d 1036, 1046 (Pa. Super. Ct. 1992) ("The

compelling interest in allowing [a] rehabilitative process to

occur in private is not to build a case for the prosecution, but

22 No. 2019AP664-CR

rather to deal with the trauma of the assault and begin the

healing process.").

¶33 Therefore, Shiffra was wrong to imply that in camera

review is a minimal intrusion on a victim's privacy. See

Shiffra, 175 Wis. 2d at 611-12. Because Shiffra undermines the

trust necessary to an effective patient-health care provider

relationship and, with it, "[t]he mental health of our

citizenry, . . . a public good of transcendent importance," we

conclude it is unsound in principle in this respect as well.

See Jaffee, 518 U.S. at 11.

¶34 Shiffra is also unworkable in practice because it

cannot be applied consistently and is inherently speculative.

¶35 As discussed previously, we said in Green that in

camera review of a victim's privileged health records is

available only if a defendant "set[s] 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" that "is not merely

cumulative to other evidence available to the defendant."

Green, 253 Wis. 2d 356, ¶34. In this context, information that

is "necessary to a determination of guilt or innocence" is

evidence that "'tends to create a reasonable doubt that might

not otherwise exist.'" Id. (quoting Commonwealth v. Fuller, 667

N.E.2d 847, 855 (Mass. 1996), abrogated on other grounds by Commonwealth v. Dwyer, 859 N.E.2d 400, 414 (Mass. 2006)).

23 No. 2019AP664-CR

¶36 Reading this language in isolation, one would think

the standard for obtaining in camera review is high. After all,

unless a defendant already knows what is in a victim's records,

how can he show a reasonable likelihood that the records contain

relevant information "necessary to a determination of guilt or

innocence?" Id. (emphasis added). Similarly, without knowing

the contents of the victim's records, how can a defendant "show

more than a mere possibility that the records will contain

evidence that may be helpful or useful to the defense?" Id.,

¶33; see also id. (stating that "[t]he mere contention that the

victim has been involved in counseling related to prior sexual

assaults or the current sexual assault is insufficient").

¶37 Yet at the same time, Green also said that the

standard it adopted was "not intended . . . to be unduly high

for the defendant." Id., ¶35. To that end, Green explained

that because "[t]he defendant, of course, will most often be

unable to determine the specific information in the records,"

"in cases where it is a close call, the circuit court should generally provide an in camera review." Id.

¶38 As these quotes demonstrate, Green is in tension with

itself. And given that tension, it should not be surprising

that courts have struggled to apply Green. Take, for example,

two cases in which defendants made similar allegations: that a

victim was receiving counseling at the time the alleged crimes

occurred, that the counseling was meant to address the victim's

relationship with the defendant or events related to the crimes charged, and that in camera review of the records would reveal 24 No. 2019AP664-CR

information about those alleged offenses. See State v. Johnson,

No. 2011AP2864-CRAC, unpublished slip op. (Wis. Ct. App. Apr.

18, 2012), aff'd as modified 2013 WI 59, 348 Wis. 2d 450, 832

N.W.2d 609 (per curiam), reconsideration granted, 353 Wis. 2d

119; State v. Keith, No. 2010AP1667-CR, unpublished slip op.

(Wis. Ct. App. May 24, 2011). In one of those cases, the court

of appeals held that the defendant made a sufficient showing for

in camera review. See Johnson, No. 2011AP2864-CRAC, at ¶14. In

the other, however, the court of appeals held that the

defendant's motion was "based on pure speculation." See Keith,

No. 2010AP1667-CR, at ¶13.

¶39 As these court of appeals decisions illustrate,

Shiffra (as modified by Green) is unworkable because it cannot

be applied consistently. But court of appeals decisions tell

only part of the story. Circuit courts also struggle to apply

Shiffra consistently because it is inherently speculative. When

a Shiffra motion is filed, neither the defendant, the State, nor

the circuit court have seen the victim's treatment records. 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 a determination of guilt or innocence." See

Green, 253 Wis. 2d 356, ¶34. Because "[t]he defendant, of

course, will most often be unable to determine the specific

information in the records," we explained that "the circuit

court should generally provide an in camera review" in close cases. Id., ¶35. Despite that, the court of appeals has 25 No. 2019AP664-CR

criticized circuit courts for appearing to "consider

possibilities of what the counseling records might contain

rather than the higher 'reasonable likelihood' standard" we

articulated in Green. See State v. Lewis, 2009AP2531-CR,

unpublished slip op., ¶14 (Wis. Ct. App. Aug. 26, 2010). The

problem, however, is not with circuit courts' application of

Green but with the standard itself. Shiffra and Green give

circuit courts no choice but to guess at whether a victim's

records contain material information and to resolve close

questions in favor of in camera review. And for that reason, we

hold that it is unworkable in practice.

¶40 Finally, since it was decided, Shiffra has been

undermined by two related developments in the law: the removal

of procedural and evidentiary barriers to prosecuting sexual

assault cases and the passage of statutory and constitutional

protections for crime victims.15 For these reasons, we also conclude that Shiffra is detrimental to coherence in the law.

We acknowledge, of course, that these changes in the law 15

would not be material to our analysis if Shiffra was right that the Constitution grants criminal defendants a right to in camera review of privately held, privileged health records upon a showing of materiality. But as we explained previously, the Constitution, as interpreted in Ritchie, does not create such a right. Nevertheless, we discuss these changes in the law because they undermine Shiffra's alternative rationale, which it said was based on "[p]ublic policy" and balancing the competing interests of privilege holders and criminal defendants, rather than the Constitution. See Shiffra, 175 Wis. 2d at 611-12.

26 No. 2019AP664-CR

¶41 Historically, the law adopted a "stance of overt

suspicion toward rape accusers." See Deborah Tuerkheimer,

Incredible Women: Sexual Violence and the Credibility Discount,

166 U. Pa. L. Rev. 1, 21 (2017). As recently as the 1970s, this

court addressed "policy considerations" that "proof of rape

[should be] difficult to prevent 'after thought' rapes, i.e.,

the possibility of women experiencing an unpleasant sex

experience being motivated to 'get even' and making a claim of

being raped." State v. Herfel, 49 Wis. 2d 513, 517, 182

N.W.2d 232 (1971). For that reason, Wisconsin law required the

victim's "utmost physical resistance" in order to prove sexual

assault. See Brown v. State, 127 Wis. 193, 206, 106 N.W. 536

(1906). Additionally, "[b]efore rape shield legislation,

defendants in sexual assault cases would use a victim's sexual

history to attack the credibility of the victim and the victim's

story." State v. Mulhern, 2022 WI 42, ¶60, 402 Wis. 2d 64, 975

N.W.2d 209 (Ziegler, C.J., concurring).

¶42 Over the last several decades, our law has evolved away from this distrust of sexual assault victims, and removed

many of the procedural and evidentiary barriers to prosecuting

those cases. See Wis. Stat. § 972.11(2)(b) (prohibiting

introduction of "evidence concerning the complaining witness's

prior sexual conduct" subject to narrow exceptions); State v.

Clark, 87 Wis. 2d 804, 815, 275 N.W.2d 715 (1979) (explaining

that, following amendments to the definition of consent in Wis.

Stat. § 940.225(4) (1977-78) "failure to resist" sexual assault "is not consent; the statute requires 'words' or 'overt acts' 27 No. 2019AP664-CR

demonstrating 'freely given consent'"); see also Tuerkheimer,

Incredible Women, supra at 21-25 (describing similar

developments in other states).16 Moreover, Wisconsin has also

acknowledged the admissibility of expert testimony to rebut

common misconceptions about the connection between delayed

reporting, which is common in both sexual assault and domestic

violence cases, and a victim's credibility. See State v.

Jensen, 147 Wis. 2d 240, 250, 432 N.W.2d 913 (1988) ("Expert

testimony on the post-assault behavior of a sexual assault

victim is admissible in certain cases to help explain the

meaning of that behavior."); State v. Bednarz, 179 Wis. 2d 460,

467-68, 507 N.W.2d 168 (Ct. App. 1993) (permitting expert

testimony about post-traumatic stress disorder as a possible

explanation for a domestic violence victim's behavior).

¶43 Despite these changes to our law, Shiffra continues to

reflect outdated skepticism toward victims of sexual assault.

Shiffra was, after all, a sexual assault case, and the rule it

adopted rested on the concern that without in camera review of privileged health records, defendants would be convicted based

on false reports. See Shiffra, 175 Wis. 2d at 612 (suggesting

that in camera review was necessary because the victim's

psychiatric records might reveal information bearing on her

"ability to accurately perceive events and her ability to relate

Although some of these changes occurred before Shiffra 16

was decided, Shiffra did not consider them, nor could it appreciate their importance within the broader context of the subsequently enacted statutory and constitutional victim's rights provisions discussed below.

28 No. 2019AP664-CR

the truth."). But now we know that false reports of crimes are

rare, and no more common in sexual assault cases than any other

type of case.17 And yet, Shiffra motions are commonplace in

sexual assault and domestic violence cases.18 By contrast,

Shiffra motions are highly unusual in other types of cases, even

though nothing about Shiffra's rule is limited to sexual assault

17 Several studies place the rate of false reports of sexual assault between 4.5 and 6.8 percent. See, e.g., Tuerkheimer, supra, at 17-20 (summarizing studies that independently reviewed allegations of sexual assault to determine whether they were false). That rate is no higher than in other types of cases. See Tyler J. Buller, Fighting Rape Culture with Noncorroboration Instructions, 53 Tulsa L. Rev. 1, 6 & n.46 (2017). Nevertheless, "studying the prevalence of false reports is difficult because of the methodological challenge of identifying ground truth——a difficulty that largely accounts for significant discrepancies in findings." Tuerkheimer, supra, at 17.

Although false reports and false convictions are serious, it is not clear why there would be fewer such reports or convictions if we upheld Shiffra. For that to be the case we would have to make the dubious assumption that individuals who make false reports are frequently disclosing their falsity to health care providers but not to other individuals, or that cross-examination and the trial process is an ineffective tool for exposing those false reports without access to victims' privileged health records. 18 Although data regarding circuit court filings are not in the record, all three of the court of appeals' non-summary decisions over the last two years mentioning Shiffra were domestic violence or sexual assault cases. See, e.g., State v. Rausch, No. 2020AP197-CR, unpublished slip op., ¶4 (Wis. Ct. App. May 11, 2022) (per curiam); State v. Steinpreis, No. 2020AP1893-CR, unpublished slip op., ¶6 (Wis. Ct. App. Mar. 9, 2022) (per curiam); State v. Hineman, No. 2020AP226-CR, unpublished slip op., ¶¶1-2 (Wis. Ct. App. Nov. 24, 2021) (per curiam), rev'd 2023 WI 1, 405 Wis. 2d 233, 983 N.W.2d 652; State v. Doyle, No. 2019AP2162-CR, unpublished slip op., ¶2 (Wis. Ct. App. June 22, 2021) (per curiam).

29 No. 2019AP664-CR

cases.19 This difference is particularly striking considering

that witness credibility is an issue in nearly every case,

regardless of the type of crime being prosecuted. Accordingly,

we conclude that Shiffra has been undermined by developments in

the law regarding sexual assault and domestic violence, and is

therefore detrimental to coherence in the law.

¶44 In addition to the changes in the law regarding sexual

assault and domestic violence, the expansion of victim's rights

laws also has undermined Shiffra. A month after Shiffra was

decided, the Wisconsin Constitution was amended to affirm that

"[t]h[e] state shall treat crime victims, as defined by law,

with fairness, dignity and respect for their privacy." See Wis.

Const. art. I § 9m (1994). A few years later, the legislature

passed a comprehensive crime victims' bill of rights, see 1997

Wis. Act 181, which was subsequently amended to grant crime

victims an enforceable right to "fairness and respect." See

Wis. Stat. § 950.04(1v)(ag). And in 2020, voters ratified

Indeed, the State was able to locate just four appellate 19

decisions in which a Shiffra motion was filed outside a sexual assault or domestic violence case, and we have been unable to locate any others. See State v. Kletzien, 2008 WI App 182, 314 Wis. 2d 750, 762 N.W.2d 788; State v. Ballos, 230 Wis. 2d 495, 602 N.W.2d 117 (Ct. App. 1999); State v. Kutska, No. 97-2962-CR, unpublished slip op. (Wis. Ct. App. Sept. 22, 1998); State v. Napper, Nos. 94-3260-CR & 94-3261-CR, unpublished slip op. (Wis. Ct. App. Sept. 12, 1996).

30 No. 2019AP664-CR

Marsy's Law,20 which amended the Wisconsin Constitution once

again to guarantee crime victims the rights "[t]o be treated

with dignity, respect, courtesy, sensitivity, and fairness,"

"[t]o privacy," and "[t]o reasonable protection from the accused

throughout the criminal . . . justice process." See Wis. Const.

art. I § 9m(2)(a), (b), (f). Additionally, Marsy's Law

guarantees that these rights will be "protected by law in a

manner no less vigorous than the protections afforded the

accused." Id. § 9m(2).

¶45 Collectively, these changes reflect increased concern

for the rights of crime victims, as well as a broader conception

of what it means to be a crime victim. See id. § 9m(1)(a)1.

Yet Shiffra did not consider the rights of crime victims at all,

let alone the impact its holding would have on victims' privacy

or their right to be protected from the accused throughout the

criminal justice process. Instead, Shiffra equated the

government's interest in the confidentiality of its

investigative files in Ritchie with a victim's interest in her privately held, privileged health records. But those interests

differ in important ways. A victim has an individual interest

in privacy guaranteed by Marsy's Law and in preserving the

atmosphere of trust and confidence necessary to obtain effective

medical treatment. See Wis. Const. art. I, § 9m(2)(b); Jaffee,

In a case decided today, Wisconsin Justice Initiative, 20

Inc. v. WEC, 2023 WI 38, ___ Wis. 2d ___, ___ N.W.2d ___, we conclude that the process by which Marsy's Law was adopted and ratified complied with the requirements of the Wisconsin constitution.

31 No. 2019AP664-CR

518 U.S. at 10. In contrast, the state's interest in

maintaining the confidentiality of the files at issue in Ritchie

related to investigating and prosecuting abuse cases. See

Ritchie, 480 U.S. at 60. Although these interests have some

things in common, namely the shared interest in avoiding

"general disclosure" of reports of assault or abuse, victims

have their own unique interests in preserving the privacy of

their confidential communications with health care providers to

obtain effective treatment. See id.; see also § 905.04(2).

¶46 Shiffra did not consider the different interests of

the State and victims, and it could not have considered the

expansion of victims' rights laws after it was decided. We

therefore conclude that these subsequent developments in the law

have undercut the rationale for Shiffra. And because Shiffra is

in tension with our victims' rights laws and the Wisconsin

Constitution's protections for crime victims, we further hold

that it is detrimental to coherence in the law.

IV

¶47 In sum, we hold that Shiffra must be overturned. It

is unsound in principle because it rests on a misinterpretation

of the United States Supreme Court's decision in Ritchie and

harms the therapist-patient relationship. It is unworkable in

practice because it is inherently speculative and cannot be

applied consistently. And it has been undermined by

developments in the law regarding sexual assault and domestic violence and by the adoption of new statutory and constitutional

32 No. 2019AP664-CR

provisions protecting the rights of victims, and is therefore

detrimental to coherence in the law. See, e.g., Wis. Const.

art. I, § 9m; Wis. Stat. § 950.04. These three reasons each

provide a special justification for departing from stare

decisis. We therefore reverse the court of appeals' decision

and remand to the circuit court with instructions to deny

Johnson's motion for in camera review of T.A.J.'s privately

held, privileged mental health treatment records.21

By the Court.—The decision of the court of appeals is

reversed, and the cause is remanded to the circuit court for

further proceedings consistent with this opinion.

Because we hold that Shiffra must be overturned, we need 21

not address the parties' other arguments about whether our constitution or victims' rights statutes grant crime victims standing in the context of a criminal case.

33 No. 2019AP664-CR.rgb

¶48 REBECCA GRASSL BRADLEY, J. (concurring).

We cannot mistake "the law" for "the opinion of the judge" because "the judge may mistake the law." Johnson v. Wis. Elections Comm'n (Johnson II), 2022 WI 14, ¶259,

400 Wis. 2d 626, 971 N.W.2d 402 (Rebecca Grassl Bradley, J.,

dissenting) (quoting Introduction, William Blackstone,

Commentaries *71), summarily rev'd sub. nom., Wis. Legislature

v. Wis. Elections Comm'n, 595 U.S. __, 142 S. Ct. 1245 (per

curiam).

¶49 This court has a duty to overrule precedential

decisions that are objectively erroneous. Friends of Frame

Park, U.A. v. City of Waukesha, 2022 WI 57, ¶42, 403 Wis. 2d 1,

976 N.W.2d 263 (Rebecca Grassl Bradley, J., concurring) (citing

Wenke v. Gehl Co., 2004 WI 103, ¶21, 274 Wis. 2d 220, 682

N.W.2d 405). "To err is human, and judges are nothing if not

human[.]" Bartlett v. Evers, 2020 WI 68, ¶202, 393 Wis. 2d 172,

945 N.W.2d 685 (Kelly, J., concurring/dissenting). "No man's

error becomes his own Law; nor obliges him to persist in it.

Neither (for the same reason) becomes it a Law to other Judges."

Cobb v. King, 2022 WI 59, ¶50, 403 Wis. 2d 198, 976 N.W.2d 410

(Rebecca Grassl Bradley, J., dissenting) (quoting Thomas Hobbes,

Leviathan 192 (Richard Tuck ed., Cambridge Univ. Press 1991)

(1651)). "[B]y obstinately refusing to admit errors" this court

does "more damage to the rule of law . . . than by overturning

an erroneous decision." State v. Roberson, 2019 WI 102, ¶49,

389 Wis. 2d 190, 935 N.W.2d 813 (quoting Johnson Controls, Inc. v. Emp'rs Ins. of Wausau, 2003 WI 108, ¶100, 264 Wis. 2d 60, 665

N.W.2d 257). 1 No. 2019AP664-CR.rgb

¶50 In this case, the State argued the court of appeals in

State v. Shiffra reached an objectively wrong holding based on

unsound reasoning. 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App.

1993), modified, State v. Green, 2002 WI 68, 253 Wis. 2d 356,

646 N.W.2d 298. This court ordered further briefing addressing

the issue.1 The court of appeals in Shiffra misapplied binding

precedent regarding the constitutional right to due process,

specifically, Pennsylvania v. Ritchie, 480 U.S. 39 (1987). This

error alone provides sufficient reason to overrule Shiffra.

¶51 Although this court correctly overrules Shiffra, I do

not join the majority opinion in full. The majority

misinterprets Shiffra, and, while it acknowledges the separation

of powers established under the Wisconsin Constitution, the

majority does not respect it.

The dissent claims this court should not overrule a case 1

unless the argument for doing so is clearly developed in the opening briefs, faulting this court for ordering further briefing on whether to overrule Shiffra. Dissent, ¶¶113–14. The dissenting author, however, has voted to overrule precedent she does not like even when no party asked this court to do so. Compare Tavern League of Wis., Inc. v. Palm, 2021 WI 33, ¶72, 396 Wis. 2d 434, 957 N.W.2d 261 (Ann Walsh Bradley, J., dissenting) (claiming one of this court's decisions should be overruled), with id., ¶38 (Hagedorn, J., concurring) (explaining this court was not "asked to reexamine" the decision and that "doing so" was unnecessary "to decide this case").

Additionally, the dissent faults this court for not addressing the standing issue. E.g., Dissent, ¶¶13–14. The dissent maintains this court's decision to leave that issue unaddressed somehow demonstrates outcome-oriented reasoning. Id. Curiously, the dissent never addresses the standing issue either——and it would seemingly need to reach the issue, unlike the majority.

2 No. 2019AP664-CR.rgb

¶52 The court of appeals in Shiffra grounded its decision

in the constitutional right to due process, but the majority

claims the court of appeals also adopted a non-constitutional

"alternative rationale": "[p]ublic policy[.]" Majority op. ¶40

n.15 (quoting Shiffra, 175 Wis. 2d at 611–12) (first

modification in the original). This interpretation of Shiffra

is tenuous, but the majority claims it necessitates a lengthy

discussion of public policy problems it perceives the court of

appeals created. See id., ¶¶24, 40 n.15. For example, the

majority reasons that "Shiffra's alternative, public-policy

based rationale is unsound in principle because it undermines

the therapist-patient relationship." Id., ¶24 (citing Shiffra,

175 Wis. 2d at 611–12). If the majority's interpretation is

correct, the alternative rationale in Shiffra is unsound

primarily because the court of appeals lacks lawmaking power——

not because the law the court of appeals created represents poor

public policy. See In re Amending Wis. Stats. §§ 48.299 &

938.299 Regulating the Use of Restraints on Child. in Juv. Ct. (Juv. Ct.), 2022 WI 26, ¶43 (Rebecca Grassl Bradley, J.,

dissenting). If a statutory privilege conflicts with the

Constitution, the Constitution always prevails, but a court has

no power to rewrite a statute it dislikes. The majority

acknowledges that "courts of course lack[] the power to rewrite

statutes in the name of public policy." Majority op., ¶30.

Assuming any discussion of this supposed alternative rationale

is necessary, it should end with this acknowledgment.

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¶53 Even if this court endorsed Shiffra as the majority

supposes, it followed the now-defunct rule that court of appeals

decisions bind this court in addition to lower courts. This

court discarded that misguided rule last term. Compare

Manitowoc County v. Samuel J.H., 2013 WI 68, ¶5 n.2, 349

Wis. 2d 202, 833 N.W.2d 109 ("[T]he doctrine of stare decisis

applies to published court of appeals opinions and requires this

court 'to follow court of appeals precedent unless a compelling

reason exists for overruling it.'" (quoting Wenke, 274

Wis. 2d 220, ¶21)), with State v. Yakich, 2022 WI 8, ¶31, 400

Wis. 2d 549, 970 N.W.2d 12 ("[W]e are not bound by court of

appeals decisions. As the state's highest court, we interpret

legal questions independently." (citing State v. Lira, 2021

WI 81, ¶45, 399 Wis. 2d 419, 966 N.W.2d 605)). This development

undermines the rationale of this court's decisions purportedly

approving Shiffra but with no analysis of its reasoning. See

Roberson, 389 Wis. 2d 190, ¶50 (explaining "[c]hanges or

developments in the law" may "undermine[] the rationale behind a decision," providing a reason to overrule the decision (citing

Bartholomew v. Wis. Patients Comp. Fund & Compcare Health Servs.

Ins., 2006 WI 91, ¶33, 293 Wis. 2d 38, 717 N.W.2d 216)).

Because I disagree with some of the reasons the majority

advances for overturning Shiffra, I join only part of the

majority opinion and respectfully concur.

I. BECAUSE THE COURT OF APPEALS WAS OBJECTIVELY WRONG IN SHIFFRA, THIS COURT MUST OVERRULE IT. ¶54 The objective error in Shiffra stems from a

fundamental misunderstanding of the Due Process Clause of the 4 No. 2019AP664-CR.rgb

Fourteenth Amendment to the United States Constitution;

specifically, the court of appeals in Shiffra did not reconcile

its reasoning with the state action doctrine. The clause

embodying that doctrine provides: "[N]or shall any State

deprive any person of life, liberty, or property, without due

process of law[.]" U.S. Const. amend. XIV, § 1 (emphasis

added). The United States Supreme Court interpreted the text of

that clause as follows: "[T]he principle has become firmly

embedded in our constitutional law that the action

inhibited . . . is only such action as may fairly be said to be

that of the States. That Amendment erects no shield against

merely private conduct, however discriminatory or wrongful."

Shelley v. Kraemer, 334 U.S. 1, 13 (1948) (citing Civil Rights

Cases, 109 U.S. 3 (1883)). This court is bound to respect this

principle because of the Supremacy Clause of the United States

Constitution, which provides that "[t]his

Constitution . . . shall be the supreme Law of the Land; and the

Judges in every State shall be bound thereby[.]" U.S. Const. art. VI, § 2. See generally Johnson v. Wis. Elections Comm'n,

2021 WI 87, ¶21, 399 Wis. 2d 623, 967 N.W.2d 469 (citing State

v. Jennings, 2002 WI 44, ¶18, 252 Wis. 2d 228, 647 N.W.2d 142).

¶55 In Brady v. Maryland, the United States Supreme Court

conceptualized a prosecutor's withholding of exculpatory

evidence as state action. 373 U.S. 83, 87–88 (1963). As the

Court explained, "prosecution that withholds

evidence . . . which, if made available, would tend to exculpate . . . [the defendant] or reduce the penalty helps

5 No. 2019AP664-CR.rgb

shape a trial that bears heavily on the defendant. That casts

the prosecutor in the role of an architect of a proceeding that

does not comport with standards of justice[.]" Id.

¶56 The Court later clarified that the rule articulated in

Brady is narrow: "There is no general constitutional right to

discovery in a criminal case, and Brady did not create one[.]"

Weatherford v. Bursey, 429 U.S. 545, 559 (1977). Brady is

grounded instead in a prosecutor's "special role[.]" Strickler

v. Greene, 527 U.S. 263, 281 (1999). A prosecutor is "the

representative not of an ordinary party to a controversy, but of

a sovereign[.]" Id. (quoting Berger v. United States, 295

U.S. 78, 88 (1935)). Hence, Brady is consistent with both the

state action doctrine and the longstanding rule that a criminal

defendant has no general constitutional right to discovery.

¶57 In Ritchie, the United States Supreme Court extended

Brady in a limited way. A criminal defendant sought access to

confidential——but not privileged——records in the possession of a

state agency with investigative duties but not in the prosecutor's possession. 480 U.S. at 42–44. The Court began

its analysis by noting, "[i]t is well settled that the

government has the obligation to turn over evidence in its

possession that is both favorable to the accused and material to

guilt or punishment." Id. at 57 (citing United States v. Agurs,

427 U.S. 97 (1976); Brady, 373 U.S. at 87) (emphasis added). It

held that a court should review the records at a closed hearing

to determine whether the law compels the State to share any of them with the accused. Id. at 61. The Court reiterated,

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however, the lack of a general constitutional right to

discovery.2 Id. at 59–60 (quoting Weatherford, 429 U.S. at 559).

¶58 The Court in Ritchie never suggested the due process

right it articulated covered records held by non-state actors.

As one commentator has explained:

Ritchie and other cases relying on Brady have no relevance to the issue of subpoenas to third parties. "Brady imposes a constitutional duty on prosecutors to turn over exculpatory evidence . . . ." The rationale for such a rule is that the prosecutor, after initiating criminal charges, should not be the "architect" of an unfair proceeding. Plainly, crime victims (and third parties holding records about crime victims) are not state actors. They are not architects of the criminal proceedings and therefore are not subject to these constitutional restrictions on state action. . . .

[A] defendant has no constitutional right to discovery[.] Paul G. Cassell, Treating Crime Victims Fairly: Integrating

Victims into the Federal Rules of Criminal Procedure, 2007 Utah

L. Rev. 861, 914–15 (quoting Bolduc v. United States, 402

F.3d 50, 56 n.6 (1st Cir. 2005)) (first ellipsis in the

original). As the court concludes in this case, the court of

appeals in Shiffra erred by "equat[ing] the government's interest . . . with a victim's interest[.]" Majority op., ¶45.

2The dissent acknowledges "[t]here is no constitutional right to an in camera review" but claims the question before this court is whether "there is a constitutional right to present a complete defense[.]" Dissent, ¶140. The dissent does not cite any source to support its assertion, but more importantly, the assertion is inconsistent with the admonition in Brady and numerous other cases that a defendant is not entitled to discovery as a matter of constitutional right.

7 No. 2019AP664-CR.rgb

¶59 No decision of the United States Supreme Court——or any

federal circuit——has suggested the existence of such a right.

As the Seventh Circuit has explained, if the government does not

possess the records, "there can be no 'state action' and

consequently, no violation of [the] Fourteenth Amendment."

United States v. Hach, 162 F.3d 937, 947 (7th Cir. 1998). It

went on to hold that "a failure to show that the records a

defendant seeks are in the government's possession is fatal

to . . . [a Ritchie claim]." Id. (citing United States v.

Skorniak, 59 F.3d 750, 755 (8th Cir. 1995)). Other circuits are

in accord. For example, the Eighth Circuit similarly held,

"While Brady requires the Government to tender to the defense

all exculpatory evidence in its possession, it establishes no

obligation on the Government to seek out such evidence." United

States v. Riley, 657 F.2d 1377, 1386 (8th Cir. 1981) (quoting

United States v. Walker, 559 F.2d 365, 373 (5th Cir. 1977)).

¶60 Neither Shiffra nor decisions relying on Shiffra

explain how a private party's withholding of records could possibly be characterized as state action. Cassell, Treating

Crime Victims Fairly, at 915 & n.319. As a lead opinion of this

court explained in 2016:

To say the court of appeals took some liberties interpreting and applying Ritchie would be an understatement. . . . [T]he court of appeals swept into Ritchie's reach privileged records held by entities completely removed from the investigative criminal process. Ritchie——a case concerning confidential records (subject to numerous exceptions) held by the very agency charged with investigating the offense and therefore soundly rooted in Brady——never should have been stretched to cover privileged records

8 No. 2019AP664-CR.rgb

held by agencies far removed from investigative and prosecutorial functions. State v. Lynch, 2016 WI 66, ¶36, 371 Wis. 2d 1, 885 N.W.2d 89

(lead op.). The court of appeals did "not offer a principled

reason for extending Ritchie to private records[.]" Cassell,

Treating Crime Victims Fairly, at 915 n.319.

¶61 The reasoning in Shiffra is demonstrably "unsound in

principle" because it displays "an erroneous understanding" of

binding precedent. See Roberson, 389 Wis. 2d 190, ¶51 (quoting

Tetra Tech EC, Inc. v. Dep't of Rev., 2018 WI 75, ¶83, 382

Wis. 2d 496, 914 N.W.2d 21 (lead op.)). The United States

Constitution does not require the pseudo-statutory scheme the

court of appeals created, and the United States Supreme Court

never suggested otherwise. "To avoid the injustice of

subjecting parties in perpetuity to erroneous holdings, '[t]he

primary and most important factor to weigh in considering

whether to overrule an earlier decision is its correctness.'"

Friends of Frame Park, 403 Wis. 2d 626, ¶65 (quoting Johnson II,

400 Wis. 2d 626, ¶259) (modification in the original). Because

Shiffra was objectively wrong as a matter of law, this court

correctly overrules it.

II. THE MAJORITY AND THE DISSENT MISREAD SHIFFRA AND MISUNDERSTAND THE SEPARATION OF POWERS BY INVOKING PUBLIC POLICY. ¶62 The majority discusses public policy considerations at

length even after holding that due process does not require the

procedure created in Shiffra. The majority acknowledges these

discussions are relevant only for rebutting the supposed "alternative" basis for the reasoning in Shiffra: "[p]ublic

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policy[.]" Majority op., ¶40 n.15 (quoting Shiffra, 175

Wis. 2d at 611–12) (first modification in the original).

Specifically, the majority maintains the court of appeals in

Shiffra grounded its holding not only in the United States

Constitution but also in "'[p]ublic policy' and balancing the

competing interests of privilege holders and criminal

defendants[.]" Id. (quoting Shiffra, 175 Wis. 2d at 611–12)

(first modification in the original).

¶63 As a preliminary matter, the existence of this

supposed alternative rationale is based on a suspect reading of

Shiffra. The phrase "public policy" appears once in Shiffra,

toward the end of the opinion. The court of appeals stated:

"Public policy and the history of our judicial system require

that Wisconsin's courts embrace Ritchie in the manner prescribed

by . . . [the court of appeals] in . . . [two previous cases]."

Shiffra, 175 Wis. 2d at 612. The court seemed to be suggesting

that the creation of what it considered to be sound public

policy justified reading Ritchie in a particular way. The court did not, however, employ public policy as an independent basis

for its holding.

¶64 Even if the majority's interpretation plausibly

reflects the reasoning of the court of appeals in Shiffra, the

majority should not incorporate public policy considerations

into its analysis because the judiciary lacks general lawmaking

power. "'The legislative power' is 'vested in a senate and

assembly' under Article IV, Section 1 of the Wisconsin Constitution." Juv. Ct., 2022 WI 26, ¶43. "This vesting is a

10 No. 2019AP664-CR.rgb

constitutional command, stated in 'unambiguous' and

'unqualified' language." Id. (quoting Bartlett, 393

Wis. 2d 172, ¶175). "The legislative power includes the

authority to: (1) 'declare whether or not there shall be a

law'; (2) 'determine the general purpose or policy to be

achieved by the law'; and (3) 'fix the limits within which the

law shall operate.'" Id., ¶44 (quoting Koschkee v. Taylor, 2019

WI 76, ¶11, 387 Wis. 2d 552, 929 N.W.2d 600). Beyond legal

pleading, practice, and procedure,3 the judiciary lacks authority

to exercise lawmaking power because the people vested that

function in a different branch. Id., ¶¶46–48. Shiffra's rule

impermissibly modified the legislature's work. As the majority

notes, "[t]here is no . . . exception to the [statutory]

privilege . . . for court-ordered in camera review of a victim's

privately-held, privileged health records upon a criminal

defendant's motion"——the court of appeals simply "created" one.

Majority op., ¶¶8–9.

¶65 Perhaps the purported public policy basis for the holding in Shiffra is unsound on several grounds, but the court

of appeals had no authority to ponder policy considerations——nor

does this court. Shiffra lacks any legitimacy because the court

3 Wisconsin Stat. § 751.12(1) (2021–22) provides in relevant part:

The state supreme court shall, by rules promulgated by it from time to time, regulate pleading, practice, and procedure in judicial proceedings in all courts, for the purposes of simplifying the same and of promoting the speedy determination of litigation upon its merits. The rules shall not abridge, enlarge, or modify the substantive rights of any litigant. 11 No. 2019AP664-CR.rgb

of appeals overrode a statute. The majority acknowledges this

obvious point, but nonetheless wades into a substantive public

policy discussion, citing social science articles regarding the

purported rate of false claims of sexual assault in an effort to

prove Shiffra is outdated. Id., ¶¶30, 43 n.17. The judiciary

is not well suited to sort through the conflicting social

science literature cited by the majority, nor does it have any

constitutional authority to determine the best public policy for

the state. "[T]he judiciary is not in a good position to judge

social values or social science. When social science is

disputed, the institutional parameters of the judiciary are

amplified. It is the legislature that is structured to assess

the merits of competing policies and ever-changing social

science assertions." Roberson, 389 Wis. 2d 190, ¶38. The

majority also does not explain how social science research could

possibly inform the analysis of whether the court of appeals

properly interpreted the Due Process Clause in Shiffra.

"[S]ocial science has no role to play in constitutional analysis[.]" Id., ¶86 (Rebecca Grassl Bradley, J., concurring).

¶66 The dissent would preserve Shiffra at the expense of

the separation of powers that is central to the Wisconsin

Constitution. The dissent and the majority agree that "nothing

in the Constitution prohibits the adoption of the Shiffra

procedure." Dissent, ¶136 (citing majority op., ¶30 n.14).

True, but the constitution assigns that choice to another branch

of government. As the majority acknowledges, the legislature could adopt a Shiffra-like procedure by statute, and other state

12 No. 2019AP664-CR.rgb

legislatures have done so. Majority op., ¶30 n.14 (citing Iowa

Code § 622.10(4)). The issue is not whether a provision of the

United States Constitution conflicts with the procedure created

by the court of appeals; we examine only whether the

Constitution requires that procedure. No provision does;

therefore, the proper "balance" between the "rights of both

criminal defendants and victims" is for the legislature to

decide. See dissent, ¶104.

¶67 The dissent does not recognize the threat Shiffra

poses to the rule of law, noting it is a "decades-old procedure,

relied upon by courts, litigants, and victims alike. And what

has the majority left in its place? Nothing." Id., ¶108. On

the contrary, the majority has restored a statutory privilege

unaltered by the judicial pen. The dissent also forgets that

"[u]nlike a fine wine, precedent does not necessarily get better

with age." Johnson II, 400 Wis. 2d 626, ¶253 (citing Montejo v.

Louisiana, 556 U.S. 778, 129 S. Ct. 2079, 2093 (2009) (Alito,

J., concurring)). Judges who rewrite a statute erode democratic rule. Reversing such judicial overreach restores it.

¶68 The dissent also invokes a rather vague reliance

interest supposedly created by Shiffra. The United States

Supreme Court explained less than a year ago that "[t]raditional

reliance interests arise 'where advance planning of great

precision is most obviously a necessity.'" Dobbs v. Jackson

Women's Health Org., 597 U.S. __, 142 S. Ct. 2228, 2276 (2022)

(quoted source omitted). Generally, such interests arise from cases deciding rules of "property and contract" law. Id.

13 No. 2019AP664-CR.rgb

(quoted source omitted). The Court has been skeptical of

"intangible" interests. Id. at 2277. What specific decisions

did people make in reliance on Shiffra? Did criminals commit

crimes thinking they could later find evidence to attack their

victims' credibility? Did victims decide not to seek mental

health counseling? Neither supports perpetuating the court of

appeals' objective error in Shiffra, but what other interests

the dissent has in mind is unclear.

III. SUBSEQUENT DEVELOPMENTS IN THE LAW UNDERMINE DECISIONS OF THIS COURT SUPPOSEDLY ENDORSING SHIFFRA. ¶69 While this court has sometimes demanded a special

justification for overruling its prior decisions, it does not

require a heightened reason to overrule court of appeals

precedent. Lira, 399 Wis. 2d 419, ¶45. Just last term, this

court noted its "repeated willingness to interpret and apply the

law correctly, irrespective of a court of appeals decision that

came to a different conclusion." Id. (collecting cases). While

the court of appeals primarily serves to correct errors below,

"[t]he people of Wisconsin established this court as the supreme

judicial tribunal and in fulfilling our constitutional duty to

declare the law in this state, we may overturn any incorrect

court of appeals opinion with no consideration of the stare

decisis doctrine." Friends of Frame Park, 403 Wis. 2d 1, ¶68.

Accordingly, "we are not bound by court of appeals decisions.

As the state's highest court, we interpret legal questions

independently." Yakich, 400 Wis. 2d 549, ¶31 (citing Lira, 399 Wis. 2d 419, ¶45).

14 No. 2019AP664-CR.rgb

¶70 Until last term, this court had recognized a peculiar

form of stare decisis, which required it to treat court of

appeals precedent as its own. See, e.g., Samuel J.H., 349

Wis. 2d 202, ¶5 n.2 (quoting Wenke, 274 Wis. 2d 220, ¶21). This

now-defunct rule caused many problems, as this case highlights.

¶71 In State v. Green, this court erroneously treated

Shiffra as binding. 253 Wis. 2d 356. In Green, the State

argued this court should overrule Shiffra. This court relegated

its analysis and ultimate rejection of that argument to a single

footnote, declaring:

The State contends that the holding in . . . Shiffra . . . was in error because it relied on . . . Ritchie . . . . The State argues that Ritchie was distinguishable and therefore inapplicable because it involved a situation, unlike here, where the records were in the government's possession. The Shiffra court, however, specifically rejected this argument, concluding that it was bound by Wisconsin precedent, which clearly made Ritchie applicable in cases where the information sought by the defense is not in the possession of the state. Shiffra, 175 Wis. 2d at 606–07, 499 N.W.2d 719 (citing State v. S.H., 159 Wis. 2d 730, 736, 465 N.W.2d 238 (Ct.App.1990), and In re K.K.C., 143 Wis. 2d 508, 511, 422 N.W.2d 142 (Ct.App.1988)). This court recognized the validity of Shiffra in State v. Solberg, 211 Wis. 2d 372, 386–87, 564 N.W.2d 775 (1997), and in State v. Rizzo, 2002 WI 20, ¶53, 250 Wis. 2d 407, 640 N.W.2d 93. We will not depart from this precedent. Id., ¶21 n.4 (emphasis added).

¶72 Although this court in Green claimed it had

"recognized the validity of Shiffra" in Solberg and Rizzo, it

did little more than cite Shiffra in those cases. Neither case,

as the majority notes, "examined the basis for the court of appeals' holding in Shiffra, . . . instead . . . [taking] its

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framework as a given." Majority op., ¶21. For example,

paragraph 53 of Rizzo, which Green indicates "recognized the

validity of Shiffra" states, in full:

Rizzo's position appears to be that he was entitled to cross-examine Dr. Pucci using the treatment records because if the records would have revealed the source of the quote as D.F.'s parents, this would have undermined Dr. Pucci's credibility. We do not adopt Rizzo's position because it would eviscerate the procedure for in camera review set forth in Shiffra, which protects a victim's confidential records. In effect, Rizzo's position would provide that the defendant must receive full access to the victim's treatment records in every case in order to effectively cross-examine an expert who treated the victim. That is in stark contrast to the in camera procedure under Shiffra, which specifically balanced the victim's interest in confidentiality against the constitutional rights of the defendant. See 175 Wis. 2d at 609–10, 499 N.W.2d 719. Rizzo, 250 Wis. 2d 407, ¶53. In Rizzo, this court did not

endorse Shiffra but rather rejected an argument that would have

left victims without protection the law provides——in contrast

with Shiffra, which at least retained some statutory protection.

The majority correctly notes that "Green, Solberg, and Rizzo

never did what the State and T.A.J. ask us to do in this case:

analyze whether Shiffra was wrongly decided." Majority op., ¶21

(citations omitted). A few Shiffra citations in this court's

decisions are insufficient to uphold Shiffra.

¶73 This court's prior treatment of Shiffra relinquished

this court's law-development function to the court of appeals,

in violation of the supreme law, which makes this court

"supreme." The people of Wisconsin ratified a constitutional amendment in the 1970s creating the court of appeals with the

16 No. 2019AP664-CR.rgb

understanding that its establishment would allow this court to

improve the quality of its legal analysis. Friends of Frame

Park, 403 Wis. 2d 1, ¶59 ("The court of appeals was created in

1978 by constitutional amendment so that this court could focus

on its law-developing function." (citing Matthew E. Garbys,

Comment, A Shift in the Bottleneck: The Appellate Caseload

Problem Twenty Years After the Creation of the Wisconsin Court

of Appeals, 1998 Wis. L. Rev. 1547, 1548). A committee noted:

In the rush to cope with its increasing calendar, the Supreme Court must invariably sacrifice quality for quantity. Increasing appellate backlogs necessarily produce a dilution in craftsmanship. . . . The Supreme Court is cast in the role of a "case-deciding court"——one which merely reacts to individual cases and thus slights its law-stating function.

. . . .

The size of this caseload can only have a detrimental effect on the quality of the Supreme Court's work. Cases involving major questions of substantive law may be decided on the basis of superficial issues.

The function of the Court of Appeals should be to provide a reasonably available appeal to correct trial court errors and to do justice expeditiously among the litigants. The articulation of broad legal principles and the formulation of a coherent body of jurisprudence should remain primarily the function of the Supreme Court. The Court of Appeals should follow the procedural and substantive law mandated through prior Supreme Court decisions, when such decisions are applicable. Citizens Study Comm. on Jud. Org., Report to Governor Patrick J.

Lucey 78, 80 (1973) (on file at the David T. Prosser Jr. State Law Library). With regard to Shiffra, this court has

"slight[ed]" its "law-stating function," thereby perpetrating 17 No. 2019AP664-CR.rgb

"the precise problem the people of this state sought to prevent

by creating the court of appeals." Friends of Frame Park, 403

Wis. 2d 1, ¶60 (quoting Citizens Study Comm. on Jud. Org.,

Report to Governor Patrick J. Lucey, at 78). The court of

appeals itself has recognized that this court "has been

designated by the constitution and the legislature as a law-

declaring court. . . . While the court of appeals also serves a

law-declaring function, such pronouncements should not occur in

cases of great moment." State v. Grawien, 123 Wis. 2d 428, 432,

367 N.W.2d 816 (Ct. App. 1985) (citation omitted).

¶74 The court of appeals in Shiffra never addressed

Ritchie directly, instead concluding court of appeals precedent,

S.H. and K.K.C., already addressed Ritchie's reach. Neither

S.H. nor K.K.C., however, supplies any substantive analysis of

Ritchie. In S.H., the court held that any argument grounded in

Ritchie had been forfeited: "S.H. . . . fails to

mention . . . his Ritchie discovery motion . . . in his main

brief. Issues not briefed are deemed abandoned. . . . [W]e will not address the [circuit] court's refusal to conduct an in

camera review pursuant to Ritchie." 159 Wis. 2d at 738

(citation omitted). The court barely discussed Ritchie, and as

the State now argues, "the only purpose of the S.H.'s court

mention of Ritchie was to explain that . . . [the defendant] had

abandoned any constitutional argument on appeal." In K.K.C.,

the court limited its analysis of Ritchie to the following:

[The defendant] contends that if the trial judge in his criminal cases does not review the agency's files, he will be denied his constitutional rights to confrontation, compulsory process and due process. 18 No. 2019AP664-CR.rgb

Pennsylvania v. Ritchie, 480 U.S. 39 . . . (1987). Ritchie holds that a criminal defendant is entitled to an in camera review by the trial court of confidential records if those records are material to the defendant's defense. Id. at ––––, 107 S. Ct. at 1003 . . . .

DeLeu has not moved the trial court in his criminal cases to make an in camera review of the agency records. If he does so, Ritchie, supra, establishes that he is entitled to such a review by the trial court, provided he makes a preliminary showing that the files contain evidence material to his defense. 143 Wis. 2d at 511. As noted in the majority opinion, K.K.C.

dealt with records possessed by a government agency, not

privately held records. See majority op., ¶15. Not only had

this court never independently analyzed Ritchie's reach, no

Wisconsin court had done so——until this case. See generally

Lynch, 371 Wis. 2d 1, ¶¶21–39 (explaining the problematic

origins of Shiffra and this court's problematic deference to

it).

¶75 The treatment of Ritchie by Wisconsin courts

demonstrates the importance of careful reconsideration of prior

judicial error:

[T]he potential for mistakes is constantly at hand, because it is tempting for a creative court to reach a decision "by extorting from precedents something which they do not contain." Robert Rantoul, Oration in Scituate (July 4, 1836) in Antonin Scalia, A Matter of Interpretation 39 (1991). Once embarked on this path, it is too easy for the court to "extend [its] precedents, which were themselves the extensions of others, till, by this accommodating principle, a whole system of law is built up without the authority or interference of the [people]." Id. Bartlett, 393 Wis. 2d 172, ¶202 (modifications in the original). Brady created a narrow right, which Ritchie then extended. Then

19 No. 2019AP664-CR.rgb

Shiffra extended Ritchie, and so on in what has been dubbed "a

series of wrong turns[.]" Katharine Adler, Comment, In the Name

of "Justice": Shiffra-Green and Their Unintended Harms, 106

Marq. L. Rev. 243, 257 (2022). At no point in this series of

extensions did this court ever step in and decide the meaning of

the law. See id. This court now does its duty.

IV. CONCLUSION

¶76 The judiciary takes an oath to uphold the United

States Constitution, not precedent. Nothing compels this court

to reflexively follow the decisions of a lower court. See

Bartlett, 393 Wis. 2d 172, ¶206. The Wisconsin Constitution

prohibits such deference. Our oath obligates us to overturn

"judge-made constitutional law," when "divorced" from the United

States Constitution. Lino A. Graglia, Constitutional Law

Without the Constitution: The Supreme Court's Remaking of

America, in "A Country I Do Not Recognize": The Legal Assault

on American Values 1–2 (Robert H. Bork ed., 2005). I

respectfully concur with the majority's decision to overturn Shiffra because the court of appeals in that case misinterpreted

federal constitutional law. The majority should have rested its

analysis solely on that ground; developments in social science

have no role to play in discerning the Constitution's meaning.

20 No. 2019AP664-CR.jjk

¶77 JILL J. KAROFSKY, J. (concurring). "For most sexual

assault victims, privacy is like oxygen; it is a pervasive,

consistent need at every step of recovery. Within the context

of the legal system, if a victim is without privacy, all other

remedies are moot." Ilene Seidman & Susan Vickers, The Second

Wave: An Agenda for the Next Thirty Years of Rape Law Reform, 38

Suffolk U.L. Rev. 467, 473 (2005).

¶78 I agree with the majority opinion and join it in full.

The majority opinion handily explains how Shiffra was unsound in

principle, unworkable in practice, and detrimental to the

coherence of the law. I write this concurrence to illustrate

the practical reality of how Shiffra was unworkable and to

address the dissenting opinion's contention that the Shiffra

framework provided a "reasonable balance" between a victim's

right to privacy and a defendant's right to present a complete

defense. See Dissent, ¶124. The on-the-ground reality of the

Shiffra framework, which I will illustrate through three case

examples, reveals anything but a reasonable balance. ¶79 I begin by taking a step back and acknowledging the

strength, courage, and resiliency necessary for a sexual assault

victim to report in the first place. Sexual assault is

pervasive in our society. The Federal Bureau of Investigation

reports that a forcible rape occurs in the United States every

3.8 minutes. Alexa Sardina & Alissa R. Ackerman, Restorative

Justice in Cases of Sexual Harm, 25 CUNY L. Rev. 1, 3 (2022).

Additionally, it is estimated that almost 20 percent of women and eight percent of men are sexually abused before the age of

1 No. 2019AP664-CR.jjk

18. Id. Despite these astronomical numbers, only approximately

36 percent of sexual assaults and 34 percent of attempted sexual

assaults are reported to police. Id. at 4. Furthermore,

according to data from the U.S. Department of Justice, as much

as 86 percent of child sexual abuse may go unreported

altogether. Dean G. Kilpatrick et al., U.S. Dep't Just., Youth

Victimization: Prevalence and Implications, 6 (Apr. 2003). The

reasons victims are reluctant to report are numerous and include

shame, fear of not being believed, and fear of retribution.

Alexa Sardina & Alissa R. Ackerman, Restorative Justice in Cases

of Sexual Harm, 25 CUNY L. Rev. 1, 6 (2022).

¶80 Despite these barriers, some sexual assault victims

still choose to report and engage with the criminal justice

system. However, in the past thirty years, because of Shiffra,

countless sexual assault victims who reported their

victimization have been on the horns of a dilemma, forced to

choose between either disclosing their mental health records or

not testifying in the trials of their perpetrators. Neither option was tenable, leaving victims with no choice but to have

their suffering compounded by the system meant to administer

justice.

¶81 Under Shiffra, once a court ordered a victim to

disclose her mental health records, a victim's first purported

option was to hand over those records for an in camera

inspection which could then lead to disclosure to the defendant.

This was hardly a workable option. Disclosing a victim's most personal beliefs, thoughts, and feelings to a judge, and

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potentially to the person who has caused her unimaginable harm,

destroys the sanctity of the relationship between the victim and

her therapist. "The psychotherapist-patient privilege is

'rooted in the imperative need for confidence and trust.'"

Jaffee v. Redmond, 518 U.S. 1, 10 (1996) (quoting Trammel v.

United States, 445 U.S. 40, 51 (1980)). That is because

"[e]ffective psychotherapy . . . depends on an atmosphere of

confidence and trust in which the patient is willing to make a

frank and complete disclosure of facts, emotions, memories, and

fears," often about sensitive issues. Id. Even "the mere

possibility of disclosure may impede development of the

confidential relationship necessary for successful treatment."

Id. Given that the disclosure of mental health records causes

incredible and irreparable harm to victims by rending the veil

of privacy required for therapeutic healing, it is not

surprising that many victims chose the second purported option

and refused disclosure.

¶82 But the option to refuse disclosure was equally unworkable. The court of appeals in Shiffra affirmed an

astonishing remedy when it decided that a victim who failed to

turn over mental health records should be sanctioned and her

trial testimony suppressed. The impact of this remedy has been

undeniably negative for both victims and the State because in

the vast majority of Shiffra cases, a victim's testimony was the

only evidence against the accused. Consequently, when a victim

was barred from testifying, the perpetrator was often not held to account.

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¶83 I turn now to three cases——Shiffra, S.C. Johnson, and

Lynch——where victims were caught on the horns of the Shiffra

dilemma. These cases reveal how defendants have filed

incredibly broad requests for victim mental health records that

were fishing expeditions at best and deliberate attempts to

harass and intimidate victims at worst. These cases further

reveal how judges have granted these broad requests, ordering

victims to release mental health records despite the defendant's

failure to point to any evidence which would bring the victim's

credibility into question. Judges have ordered victims to turn

over years, even decades, of therapy records in order to look

for the possible absence of communication to the therapist about

the abuse——which may not have been relevant evidence to begin

with. See State v. Hineman, 2023 WI 1, ¶65, 405 Wis. 2d 233,

983 N.W.2d 652 (Karofsky, J., concurring) ("The truth——as

opposed to the myth——is that when it comes to child sexual

assault cases, disclosure is the departure from the norm.").

Finally, these cases exemplify how the Shiffra remedy led to catastrophic results as charge after charge was dropped or

amended to far less serious charges, and justice was all but

abandoned.

I. STATE V. SHIFFRA

¶84 State v. Shiffra itself demonstrates the sheer breadth

of privileged mental health information that some victims were

ordered to turn over and the consequences that ensued when

victims did not comply with the order to disclose their records. It also demonstrates how requests can be both highly speculative

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and cumulative of other evidence already available to the

defendant. Shiffra was charged with second-degree sexual

assault for an incident involving a victim I will refer to as

P.P. See State v. Shiffra, 175 Wis. 2d 600, 602, 499 N.W.2d 719

(Ct. App. 1993). Shiffra was accused of sexually assaulting

P.P., leaving her with bruises on her breasts and left elbow and

a "hickey" on her left breast——bruises that were documented by

the police when she reported the incident that same evening.

Id. The day before the jury trial was to start, Shiffra filed a

motion seeking an adjournment because the State had turned over

evidence that indicated that P.P. had "a history of psychiatric

problems which may affect her ability to perceive and relate

truthful information." Id. at 603.

¶85 After the circuit court granted the adjournment,

Shiffra filed a motion seeking an order requiring P.P. "to

reveal to the defendant her psychiatric history, psychiatric

records and to execute an authorization to release medical

information from any doctors, hospitals or counselors seen by [P.P.] with respect to her mental condition." Id. at 603. More

specifically, the defense sought evidence that P.P. "may suffer

from some type of psychiatric disorder which causes her an

inability to truthfully relate facts as she perceives

them . . . . And that she may suffer from an inability or some

disorder which causes her to have flashbacks to previous

instances in her life and then they become sexual assaults of

her because of her disorders." Id. The circuit court found that "there has been a sufficient basis shown . . . for the

5 No. 2019AP664-CR.jjk

Court to at least believe an in camera inspection be ordered for

the Court to determine whether or not there is anything in

the . . . psychiatric or psychological reports which would be of

materiality to the defendant." Id. at 604. According to the

court, the defendant presented "an adequate showing to indicate

that there may be psychological problems which do affect . . .

the individual's ability to accurately perceive what is going on

about [her]." Id.

¶86 The circuit court then ordered P.P to present all

medical records related to her mental health history within 21

days or be barred from testifying at trial. Id. at 604-05.

This order is particularly notable for its breadth and lack of

limitation. P.P. had told defense counsel that she had received

mental health treatment from the time she was six years old,

which meant that the court ordered P.P. to turn over twenty-

seven years of treatment records. Id. at 610; Brief of

Plaintiff-Appellant at 30, State v. Shiffra, 91-CF-451. Twenty-

seven years of vulnerabilities, traumas, and personal struggles, all laid bare in front of the court. When faced with this

proposition, P.P. opted not to disclose, and the court issued an

order barring her from testifying. Shiffra, 175 Wis. 2d at 605.

¶87 The court of appeals affirmed the circuit court. Id.

at 602. It recognized that Shiffra needed to make a preliminary

showing of materiality by showing that "[P.P.'s] records are

relevant and may be necessary to a fair determination of guilt

or innocence." Id. at 610. However, the court then seemingly ignored the fact that P.P.'s mental health records were

6 No. 2019AP664-CR.jjk

cumulative of other evidence already available to Shiffra——

namely, extensive information about P.P.'s mental health history

that defense counsel had already obtained from P.P. in an

interview. Id. at 610-11. The court's justification also

demonstrates the highly speculative nature of the demand for

P.P.'s records:

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 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 [P.P.'s] reality 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.

Shiffra, 175 Wis. 2d at 611. ¶88 Because P.P. refused to release twenty-seven years of

privileged mental health records to the court for the purpose of

confirming her "reality problems in sexual matters," she was not allowed to testify, and there was no trial. Instead, the

charges were significantly reduced to misdemeanors, and Shiffra

pled to one count of battery, one count of fourth degree sexual

assault, and one count of disorderly conduct. Judgment of

Conviction, State v. Shiffra, 91-CF-451. He was sentenced to

six months in jail, which was stayed, and was placed on

probation for three years. Id.

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II. STATE V. S.C. JOHNSON

¶89 State v. S.C. Johnson, No. 2011AP1864-CRAC,

unpublished slip op. (Wis. Ct. app. Apr. 18, 2012), also

demonstrates how Shiffra's materiality requirement did nothing

to prevent some defendants' purely speculative requests. The

inherent speculation of requests for records under Shiffra was

exacerbated in this case, as in many others, because the request

was based on the possibility that the victim had not shared her

experience of sexual abuse with a therapist.

¶90 S.C. Johnson was charged with one count of repeated

sexual assault and three counts of incest by a stepparent for

incidents that took place when his stepdaughter, T.S., was

between twelve and fifteen years old. Id. at ¶3. Based on

these charges, his total exposure was 160 years in prison.

¶91 Johnson sought an in camera inspection of T.S.'s

therapy records. The request was premised entirely on the

unsupported possibility that the victim had "either denied or

did not disclose any sexual assault by Johnson" to her therapist. Id. at ¶4.

¶92 Yet, the circuit court still ordered T.S. to turn over

her records, and when she refused based on privilege, the State—

—not the defendant——sought an order compelling production of her

records. Id. at ¶¶6-8. The circuit court decided that rather

than suppressing T.S.'s testimony, it would "inform the jury

that, as a result of the victim's refusal, a presumption exists

that the contents of the records would have been helpful to the defense." Id. at ¶1.

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¶93 The court of appeals upheld the circuit court's

determination regarding the in camera inspection based on the

mistaken idea that a lack of communication to a therapist about

sexual abuse would be relevant to the case:

We conclude that there is a "reasonable likelihood" that the records contain relevant information necessary to a determination of guilt or innocence such that in camera inspection is required. The fact that the purpose of the therapy was to address interpersonal relationships between T.S. and Johnson and that the therapy occurred during the time period at issue makes it reasonably likely the records contain relevant information necessary to a determination of guilt or innocence. Id., ¶15 (internal citation omitted).

¶94 Moreover, the court of appeals doubled down, reversing

the circuit court's decision regarding remedy and ordering the

suppression of T.S.'s testimony.1 Id. at ¶¶16-18. The decisions

of the circuit court and court of appeals were striking because

they ordered the disclosure of years and years of therapy

records in order to determine whether T.S. reported being

sexually abused. However, this premise is simply not relevant given the prevalence of delayed reporting in child sexual

assault cases. See Tonya Lippert, et al., Telling Interviewers

About Sexual Abuse: Predictors of Child Disclosure at Forensic

Interviews, 14 Child Maltreatment 100, 100 (Feb. 2009)

("Research on children and adults indicates that children often

significantly delay disclosure of sexual abuse or keep the abuse

a secret into adulthood.").

On appeal, this court was divided and the court of appeals 1

decision stood. See State v. Johnson, 2014 WI 16, 353 Wis. 2d 119, 846 N.W.2d 1. 9 No. 2019AP664-CR.jjk

¶95 Unsurprisingly, without the testimony of T.S. there

was no trial. Instead, S.C. Johnson pled to amended misdemeanor

charges of fourth degree sexual assault and disorderly conduct.

Judgment of Conviction, State v. Johnson, 2011CF376. He served

four months in jail with Huber2 release privileges. Id.

III. STATE V. LYNCH

¶96 State v. Lynch, 2016 WI 66, 371 Wis. 2d 1, 885

N.W.2d 89, demonstrates more of the same——a request for eighteen

years of mental health records based on the possibility that:

(1) the victim may have had a mental health diagnosis that could

have compromised her credibility, or (2) that the victim had not

communicated the abuse to her therapist.

¶97 Former Fox Lake Police Chief Patrick Lynch was charged

with three counts of first-degree sexual assault of a child and

three counts of stalking for incidents that started in 1989 when

the victim was seven years old. Lynch, 371 Wis. 2d 1, ¶12. He

faced over 30 years in prison. Prior to trial, Lynch filed a

Shiffra motion, seeking to subpoena the victim's "psychiatric, psychological, counseling, therapy and clinical records" from

1993-2011 for in camera review. Id. at ¶13. The court granted

the motion based on two of the defendant's proposed rationales:

(1) the victim exhibited ongoing symptoms of post traumatic

stress disorder, an illness which sometimes affects the

sufferer's memory; and (2) contrary to some of the victim's

statements, the victim likely did not report Lynch to any

2Huber release grants leave privileges to county jail prisoners for purposes such as employment, healthcare, attending to family needs, and more. See Wis. Stat. § 303.08.

10 No. 2019AP664-CR.jjk

treatment providers as a child because those treatment providers

were mandatory reporters, but did not report the assault. State

v. Lynch, 2015 WI App 2, ¶¶13, 26, 359 Wis. 2d 482, 859 N.W.2d

125.

¶98 The circuit court found in favor of the defendant and

ordered the victim to disclose "the names and addresses of all

of her treatment providers since January 1, [1990]," and to

authorize the court to obtain her records. Lynch, 371 Wis. 2d

1, ¶14. It continued, "By treatment providers, the [c]ourt is

talking about physicians, psychologists, psychiatrists, and

other forms of therapists engaged in any form of counseling with

[the complainant] up to the present time." (Emphasis removed)

Id.

¶99 The victim refused to turn over her mental health

records "[u]nless and until" the circuit court's determination

was reviewed by another court. Id. at ¶15. As a consequence,

pursuant to Shiffra, the court barred her from testifying

against Lynch at trial. The State filed an appeal, and the court of appeals affirmed. Lynch, 359 Wis. 2d 482. The State

then appealed to this court, but we were divided and so the

court of appeals decision stood. Lynch, 371 Wis. 2d 1.

¶100 This case demonstrates how easily in camera review

could be obtained despite no showing of any individualized link

between the victim's records and the theory of the defense. By

the circuit court's logic, the therapy records of anyone who

displays symptoms of PTSD could have been subject to in camera review. Since symptoms of PTSD are common for victims of sexual

11 No. 2019AP664-CR.jjk

assault (see Emily R. Dworkin, et. al., PTSD in the Year

Following Sexual Assault: A Meta-Analysis of Prospective

Studies, Trauma, Violence & Abuse (2021) (finding that about 75

percent of sexual assault victims experience symptoms of PTSD a

month after a sexual assault)), this and similar applications of

Shiffra exposed a sweeping number of victims to in camera review

of a wide swath, if not all, of their mental health records.

¶101 Also, this case again shows how courts ignored when

requested records were cumulative of other evidence. Lynch

already had statements from the victim's provider and a defense

expert that indicated the victim exhibited PTSD symptoms. It is

unclear what further probative value the victim's records

offered as Lynch had what he needed to make his case.

¶102 Without the victim's testimony, the charges were

amended and Lynch pled to four misdemeanor crimes: two counts of

attempted stalking and two counts of attempted misconduct in

office. Judgment of Conviction, State v. Lynch, 2010CR365. His

only penalty was to pay court costs. Id. IV. CONCLUSION

¶103 These cases all demonstrate the untenable choice that

Shiffra so often forced upon victims: (1) turn over years

(sometimes decades) of highly personal records based on little

more than speculation and incorrect assumptions about mental

health and sexual abuse; or (2) opt not to disclose, be barred

from testifying, and see their perpetrator walk away. This

approach was never "balanced." Shiffra was a thumb on the scale. By subjecting victims to the risk of vast invasions of

12 No. 2019AP664-CR.jjk

their privacy and then sanctioning those victims who wished to

guard their most private records, Shiffra allowed perpetrators

to harass victims into silence.

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¶104 ANN WALSH BRADLEY, J. (dissenting). Admittedly,

this case raises a difficult issue. Protecting the rights of

both criminal defendants and victims often requires a delicate

balance.

¶105 Almost three decades ago, the court of appeals

attempted to strike that balance in State v. Shiffra, 175

Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993). And in State v.

Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, this court

embraced and refined the standard the court of appeals

established in Shiffra.

¶106 These cases set forth a procedure by which, if a

defendant believes there is relevant information located in a

victim's1 health records, the defendant may seek an in camera

review of those records. In order to receive an in camera

review, the defendant must meet an initial burden "to make a

preliminary showing that the sought-after evidence is relevant

and may be helpful to the defense or is necessary to a fair

determination of guilt or innocence." Shiffra, 175 Wis. 2d at 608. "[T]he 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

As the majority opinion observes, a Shiffra/Green motion 1

could be filed to seek in camera review of any witness's records. Majority op., ¶1 n.2. For the sake of consistency, I also use the word "victim" throughout this writing.

1 No. 2019AP664-CR.awb

to other evidence available to the defendant." Green, 253 Wis.

2d 356, ¶34.

¶107 During this process, the victim has two opportunities

to refuse to disclose the documents——at the time the defendant

files a motion for in camera review or, if the circuit court

determines that the defense is entitled to the records, after

the in camera review but before the documents are disclosed. If

the victim does not disclose the records, then the victim cannot

later testify. See Shiffra, 175 Wis. 2d at 612.

¶108 The majority now discards this decades-old procedure,

relied upon by courts, litigants, and victims alike. And what

has the majority left in its place? Nothing.

¶109 Shiffra may not provide a perfect procedure, yet such

a goal is rarely achieved in our system of law. However, the

procedure is well-established, and has proven to be a workable

means of balancing the important interests at stake. Because

the majority both discounts the principle of stare decisis and

misapplies the stare decisis factors, I respectfully dissent. I

¶110 This case has traveled a long and winding road to this

point, and Johnson's trial has not yet even begun. Johnson was

charged with multiple offenses, including sexual assault of his

son, T.A.J., and his daughter, K.L.J. Majority op., ¶2.

Pursuant to Shiffra and Green, Johnson filed a motion in the

circuit court for the court to conduct an in camera review of

counseling records of the two alleged victims. Id.

2 No. 2019AP664-CR.awb

¶111 After the State took no position on the motion, T.A.J.

submitted a brief in opposition. Id. The circuit court denied

the motion, determining that "there is no legal standing for

victims to file such motions." Upon T.A.J.'s interlocutory

appeal, the court of appeals reversed, determining that Article

I, § 9m of the Wisconsin Constitution gave the alleged victim

standing to oppose Johnson's Shiffra/Green motion. Id., ¶3;

State v. Johnson, 2020 WI App 73, ¶26, 394 Wis. 2d 807, 951

N.W.2d 616. Johnson petitioned for this court's review.

¶112 Last term, in September of 2021, we held an initial

oral argument, examining two issues raised by Johnson's petition

for review: (1) whether an alleged victim in a criminal case

has standing under Article I, § 9m of the Wisconsin Constitution

to lodge legal arguments in opposition to a defendant's motion

for in camera review, and (2) whether recent amendments to that

constitutional provision apply retroactively to an alleged

victim's request for standing prior to the enactment of the

amendment.2 ¶113 As the majority correctly states, the parties' briefs

"understandably focused on the issue of [standing]." Majority

op., ¶4. It further explains that "[t]he State also asserted,

however, that Shiffra was wrongly decided." Id. What the

2 The parties also briefed the question of whether Wis. Stat. § 950.105, which provides in relevant part that, "[a] crime victim has a right to assert, in a court in the county in which the alleged violation occurred, his or her rights as a crime victim under the statutes or under article I, section 9m, of the Wisconsin Constitution," confers standing on the alleged crime victim in this matter.

3 No. 2019AP664-CR.awb

majority fails to explain is that this assertion was not raised

until it appeared in the State's response brief, and then it was

tucked away in a cryptic footnote: "Shiffra is incorrect to the

extent that it holds that Ritchie applies to records outside the

State's possession." With this oblique reference, the majority

was able to tee up the issue, reaching out to transform the case

to meet its desired quest——to overrule Shiffra.

¶114 After another round of briefing and another round of

oral argument, the majority now overrules Shiffra. In doing so,

it bases its determination on the assertions that Shiffra was

wrongly decided, is unworkable, and has been undermined by

developments in the law. Id., ¶1. Interestingly, in its final

footnote the majority reveals its true hand, acknowledging the

abandonment of the very issue for which we granted review:

"Because we hold that Shiffra must be overturned, we need not

address the parties' other arguments about [standing]." Id.,

¶47 n.21.

II ¶115 The majority's legal analysis gets off on the wrong

foot by giving short shrift to the principle of stare decisis.

¶116 Stare decisis refers to the principle that requires

courts to "stand by things decided" and is fundamental to the

rule of law. Hinrichs v. DOW Chem. Co., 2020 WI 2, ¶66 & n.12,

389 Wis. 2d 669, 937 N.W.2d 37. "This court follows the

doctrine of stare decisis scrupulously because of our abiding

respect for the rule of law." Johnson Controls, Inc. v. Emps.

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Ins. of Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665

N.W.2d 257.

¶117 "Fidelity to precedent ensures that existing law will

not be abandoned lightly. When existing law is open to revision

in every case, deciding cases becomes a mere exercise of

judicial will, with arbitrary and unpredictable results."

Schultz v. Natwick, 2002 WI 125, ¶37, 257 Wis. 2d 19, 653

N.W.2d 266 (internal quotations and footnotes omitted).

Accordingly, any departure from stare decisis "demands special

justification." Id.

¶118 Such "special justification" can be found where

certain criteria articulated in our case law are present. Those

criteria include: (1) where changes or developments in the law

have undermined the rationale behind a decision; (2) where there

is a need to make a decision correspond to newly ascertained

facts; and (3) whether a precedent has become detrimental to

coherence and consistency in the law. Hinrichs, 389

Wis. 2d 669, ¶68. "We also consider 'whether the prior decision is unsound in principle, whether it is unworkable in practice,

and whether reliance interests are implicated.'" Id. (quoting

Johnson Controls, 264 Wis. 2d 60, ¶99).

¶119 It is true that Shiffra is a court of appeals opinion,

and not an opinion of this court. See majority op., ¶20.

However, this court has applied and signaled its approval of

Shiffra time and time again. The majority simply assumes

without deciding that Shiffra "should be treated as precedent

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from this court" and moves on. Id., ¶22. But that isn't the

whole story.

¶120 In State v. Solberg, 211 Wis. 2d 372, 564 N.W.2d 775

(1997), this court embraced Shiffra, explaining that the

procedure it established "strikes an appropriate balance between

the defendant's due process right to be given a meaningful

opportunity to present a complete defense and the policy

interests underlying the Wis. Stat. § 904.05(2) privilege."

Solberg, 211 Wis. 2d at 387 (footnote omitted). Further, we

stated that "giving the defendant an opportunity to have the

circuit court conduct an in camera review of the privileged

records, while still allowing the patient to preclude that

review, addresses both the interests of the defendant and the

patient." Id.

¶121 Five years after we decided Solberg, we again had an

opportunity to consider the contours of Shiffra in Green, 253

Wis. 2d 356. There, we fine-tuned the standard set forth in

Shiffra, concluding that "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." Id.,

¶33. Rather than even remotely calling Shiffra into question,

the Green court refined the standard it presents, further

entrenching Shiffra in the law. See also Johnson v. Rogers

Mem'l Hosp., Inc., 2005 WI 114, ¶¶72-74, 283 Wis. 2d 384, 700

N.W.2d 27 (stating and relying on the Shiffra standard); State v. Allen, 2004 WI 106, ¶31, 274 Wis. 2d 568, 682 N.W.2d 433

6 No. 2019AP664-CR.awb

(same); State v. Rizzo, 2002 WI 20, ¶¶48-54, 250 Wis. 2d 407,

640 N.W.2d 93 (applying the Shiffra framework).

¶122 But that's not all. When explicitly given the

opportunity to do so on multiple occasions, this court has

declined to overrule Shiffra. First, in State v. Johnson, 2013

WI 59, ¶2, 348 Wis. 2d 450, 832 N.W.2d 609 (per curiam), the

court observed in a per curiam opinion that "[a] majority of the

court would not overrule Shiffra. Chief Justice Abrahamson,

Justice [Ann Walsh] Bradley, Justice Crooks, and Justice Ziegler

conclude that Shiffra should not be overruled, observing that

this court has reaffirmed or applied Shiffra in a number of

cases."3

¶123 Then in State v. Lynch, 2016 WI 66, 371 Wis. 2d 1, 885

N.W.2d 89, the court again declined an opportunity to overrule

Shiffra. Lynch produced no majority opinion, but several

justices, constituting a clear majority, wrote regarding the

need to maintain Shiffra.

¶124 Justices Abrahamson and Ann Walsh Bradley stated: "Contrary to Justice Gableman's opinion, we would not overrule

Shiffra. There are strong interests implicated when a defendant

seeks a witness's mental health treatment records." Id., ¶113

(Abrahamson & Ann Walsh Bradley, JJ., concurring in part,

dissenting in part). In describing these implicated interests,

these two justices observed that "[f]or defendants, it is the

3 The court later granted reconsideration in Johnson, but the essential point that Shiffra should be maintained did not change. State v. Johnson, 2014 WI 16, ¶3, 353 Wis. 2d 119, 846 N.W.2d 1 (per curiam) (granting reconsideration).

7 No. 2019AP664-CR.awb

interest in being able to present a complete defense," while

"[a]t the same time, patients have an interest in keeping their

mental health treatment records private." Id., ¶113-14. "The

Shiffra procedure takes both of these interests into account and

prescribes a reasonable balance" and "is consistent with the

approach taken by a majority of state courts." Id., ¶115-16.

¶125 Likewise, Justice Prosser wrote that he would leave

Shiffra intact. He stated:

Although the lead opinion by Justice Michael J. Gableman makes a number of compelling arguments about the foundation and lineage of Shiffra and Green, as well as their effect on Wisconsin law, I am ultimately persuaded that the better course for this court is to address the concerns arising from these opinions rather than to strike them down and start over. In my view, overruling the opinions is more likely to intensify controversy than to resolve it, as overruling would seriously undermine a number of prior decisions and would invite a host of new theories to protect criminal defendants at trial. Id., ¶152 (Prosser, J., dissenting).

¶126 Finally, then-Justice Ziegler indicated her support

for maintaining the Shiffra framework: "The Shiffra–Green line of cases, while not perfect, has provided a reasoned and

reasonable approach to these difficult questions. Under

principles of stare decisis, I would not overthrow these well-

established cases without 'special justification,' and none has

yet been provided." Id., ¶192 (Ziegler, J., dissenting)

(internal citation omitted).

¶127 The majority here says that Lynch and Johnson indicate

that the validity of Shiffra remains an open question. Majority op., ¶22. This is a tenuous assertion. Just because the State

8 No. 2019AP664-CR.awb

doesn't like Shiffra and continually seeks to overturn it does

not mean that the question was not given a definitive answer.4

In both of the cited cases, the court was presented with a clear

opportunity to overrule Shiffra and declined it. The fact that

Johnson was a per curiam opinion and Lynch resulted in no

majority does not change this fact.

¶128 This court has relied on and reaffirmed Shiffra to a

significant extent. Stare decisis weighs heavily in such a

situation. See Lynch, 371 Wis. 2d 1, ¶88 (Abrahamson & Ann

Walsh Bradley, JJ., concurring in part, dissenting in part).

¶129 The extent of the majority's destabilization is only

partially revealed in footnote 3. In addition to overruling

Shiffra, it apparently is also overruling in part State v.

Green, 253 Wis. 2d 356, State v. Rizzo, 250 Wis. 2d 407, State

v. Solberg, 211 Wis. 2d 372, State v. Behnke, 203 Wis. 2d 43,

55-57, 553 N.W.2d 265 (Ct. App. 1996), State v. S.H., 159

Wis. 2d 730, 465 N.W.2d 238 (Ct. App. 1990), and Rock Cnty.

Dep't of Soc. Servs. v. DeLeu, 143 Wis. 2d 508, 422 N.W.2d 142 (Ct. App. 1988), and untold others, too numerous to mention.

The majority provides the above list of cases as only a sampling

of cases which it is overruling today.

¶130 But instead of acknowledging the force with which this

court has reaffirmed and maintained Shiffra, the majority

minimizes such reliance. See majority op., ¶¶21-22. I would

not do so. Consistency and stability in the law demands that we

4 See State v. Lynch, 2016 WI 66, ¶189, 371 Wis. 2d 1, 885 N.W.2d 89 (Ziegler, J., dissenting).

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give greater consideration to stare decisis than does the

majority.

¶131 Not only does the majority give short shrift to the

principle of stare decisis, but it also mistakenly concludes

that the relevant criteria weigh in favor of overruling Shiffra.

¶132 The majority bases its conclusion on three assertions:

(1) that "Shiffra is unsound in principle because it incorrectly

concluded that Ritchie applied to privately held and statutorily

privileged health records," majority op., ¶24; (2) that Shiffra

is "unworkable in practice because it cannot be applied

consistently and is inherently speculative," id., ¶34; and (3)

that Shiffra has been undermined by both "the removal of

procedural and evidentiary barriers to prosecuting sexual

assault cases and the passage of statutory and constitutional

protections for crime victims." Id., ¶40. All three assertions

prove to be unavailing, and I will address each in turn.

A ¶133 As a first basis for overruling Shiffra, the majority

asserts that it is unsound in principle. It points to a

purported misreading of Pennsylvania v. Ritchie, 480 U.S. 39

(1987). In the majority's view, Shiffra erroneously concluded

that Ritchie, which addressed records in the State's possession,

applied to privately held records. Majority op., ¶25.

¶134 However, the Ritchie court merely dealt with the facts

before it, which involved records in the State's possession. Nothing in that opinion forecloses its application outside of

10 No. 2019AP664-CR.awb

this narrow context. Although its conclusion was derived in

part from principles set forth in Brady,5 it went out of its way

to "express no opinion on whether the result . . . would have

been different if [a] statute had protected the [subject] files

from disclosure to anyone, including law-enforcement and

judicial personnel." Ritchie, 480 U.S. at 57 n.14; see also

Lynch, 371 Wis. 2d 1, ¶¶210-16 (Ziegler, J., dissenting).

Wisconsin statutes do not go so far as to protect privileged

records from everyone in all circumstances, see Wis. Stat.

§§ 146.82(2), 905.04(4), but "even if the statute[s] did not

allow such disclosure, the Ritchie court 'express[ed] no

opinion' on the potential distinction." Lynch, 371 Wis. 2d 1,

¶212 (Ziegler, J., dissenting).

¶135 Indeed, "courts in many other states have extended

Ritchie to cover records held by private health care providers."

Id., ¶167 (Prosser, J., dissenting); see State v. Kelly, 545

A.2d 1048, 1056 (Conn. 1988); Burns v. State, 968 A.2d 1012,

1024 (Del. 2009); People v. Bean, 560 N.E.2d 258, 273 (Ill. 1990); Cox v. State, 849 So.2d 1257, 1272 (Miss. 2003); State v.

Cressey, 628 A.2d 696, 703-04 (N.H. 1993); State v. Rehkop, 908

A.2d 488, 495-96 (Vt. 2006); Gale v. State, 792 P.2d 570, 581

(Wyo. 1990). Shiffra's analysis of Ritchie is thus not an

outlier.

¶136 A distinction between publicly and privately held

records has thus been persuasively rejected not only by this

court in Lynch, but also by courts around the country. Notably,

5 See Brady v. Maryland, 373 U.S. 83 (1963).

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the majority even recognizes that nothing in the Constitution

prohibits the adoption of the Shiffra procedure. Majority op.,

¶30 n.14. It should likewise recognize that nothing in its

opinion justifies this about-face. Regardless, the majority

soldiers on.

¶137 The majority contends next that Shiffra is unworkable.

Again, this assertion is handily dismantled. In asserting that

Shiffra is unworkable in practice, the majority points to

purported problems in the consistency of its application and the

"inherently speculative" nature of its inquiry. Majority op.,

¶34.

¶138 But just because judges may reach different

conclusions on similar facts does not mean that the standard

itself is unworkable. For example, judges reach differing

determinations on similar facts regarding whether reasonable

suspicion for a search exists all the time, but this does not

mean that reasonable suspicion is an unworkable standard. Similarly, judges with similar facts in a criminal case,

applying the same standards, may reach different conclusions as

to what constitutes an appropriate sentence. Again, this does

not mean that the sentencing standards are unworkable.

¶139 Contrary to the majority's assertion, Shiffra provides

a clear standard and guiding principle on which all can rely.

This court has seen fit to tweak that standard on only one

occasion. See Green, 253 Wis. 2d 356, ¶¶33-34.

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¶140 The root of the majority's error on this point appears

to be in its refusal to recognize that the defendant's right to

present a complete defense is even implicated in the present

situation. See majority op., ¶28. This fundamental flaw

permeates the majority's analysis, causing it to discount the

defendant's interests and fail to grasp the true nature of the

problem to which Shiffra provides a solution. By sleight of

hand, the majority in essence states that there is no "due

process right to in camera review of a victim's privately held,

privileged health records upon a showing of materiality." Id.,

¶29. That is not the question. There is no constitutional

right to an in camera review. Rather, there is a constitutional

right to present a complete defense and an in camera review is

but a means of fulfilling that right.

¶141 Certainly there are weighty interests on the victim's

side as well, a premise that I do not dispute. But those

interests are protected both by the steep initial burden a

defendant must meet to be entitled to an in camera review, much less access to records, and the absolute privilege to refuse to

disclose the records (albeit with the consequence of not being

able to testify). See Green, 253 Wis. 2d 356, ¶34 (setting

forth that "the preliminary showing for an in camera review

determination of guilt or innocence and is not merely cumulative to other evidence available to the defendant"). Under this

standard, circuit courts do not take the decision to allow in

camera review lightly. Broad requests and fishing expeditions

will be rejected, and decisions are subject to appellate review.

¶142 As then-Justice Ziegler has aptly stated:

The Shiffra–Green framework provides a workable solution to a difficult problem. Perhaps suggesting its intrinsic equity, the framework forces every party involved——the defendant, the privilege-holder, the State——to shoulder a burden of some kind. The defendant must meet the required evidentiary showings, is never allowed his own review of the records at issue prior to final disclosure, and may nevertheless lose access to the records if the privilege-holder does not consent to disclosure. The privilege-holder must choose between limited disclosure of privileged evidence which is reasonably likely to contain relevant, non-cumulative information necessary to a determination of the defendant's guilt or innocence and preclusion of her testimony at trial. Finally, the State faces the possibility that its prosecution will be "hampered by a witness who strives to maintain privacy." Lynch, 371 Wis. 2d 1, ¶201 (Ziegler, J., dissenting) (citing

Behnke, 203 Wis. 2d at 55).

¶143 While the majority's result is certainly protective of

alleged crime victims, I question whether it impairs the truth- seeking function of our courts. Although the majority is

correct that false reports are rare, see majority op., ¶43 n.17,

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this is little comfort to the between 4.5 and 6.8 percent of

defendants who are falsely accused.6

¶144 For centuries, our jurisprudence has followed the

admonition that it is better for ten guilty people to go free

than one innocent languish in prison. See 4 W. Blackstone,

Commentaries on the Laws of England (1769) c. 27, p. 352; Furman

v. Georgia, 408 U.S. 238, 367 n.158 (1972) (Marshall, J.,

concurring); see also In re Winship, 397 U.S. 358, 372 (1970)

(Harlan, J., concurring). Benjamin Franklin voiced this same

sentiment, albeit with a different mathematical formulation. He

stated it as: "it is better 100 guilty Persons should escape

than that one innocent Person should suffer." 9 Benjamin

Franklin, Works 293 (1970), Letter from Benjamin Franklin to

Benjamin Vaughan (14 March 1785). Shiffra serves such an end,

and the majority's departure takes us further away from this

foundational principle.

C

¶145 The majority's contention that subsequent developments in the law have undermined the Shiffra procedure also falls

flat.

I observe that the Shiffra procedure also may assist in 6

shielding a defendant from an allegation that is the result of a false memory. See Johnson v. Rogers Mem'l Hosp., Inc., 2005 WI 114, ¶¶1, 4, 283 Wis. 2d 384, 700 N.W.2d 27; Sawyer v. Midelfort, 227 Wis. 2d 124, 132-33, 595 N.W.2d 423 (1999). In such a situation, access to counseling records may be of great import. See Elizabeth F. Loftus, et al., Patient- Psychotherapist Privilege: Access to Clinical Records in the Tangled Web of Repressed Memory Litigation, 30 U. Rich. L. Rev. 109, 111 (1996).

15 No. 2019AP664-CR.awb

¶146 According to our methodology regarding stare decisis

as cited above, "changes or developments in the law" may

undermine the rationale behind a decision such that overruling

it is appropriate. Johnson Controls, 264 Wis. 2d 60, ¶98. The

majority points to several purported "developments" that have so

undermined Shiffra. First, it cites the removal of "many of the

procedural and evidentiary barriers" to prosecuting sexual

assault cases and the law's evolution away from distrust of

sexual assault victims. Majority op., ¶42. It also highlights

the expansion of victims' rights laws of both the statutory and

constitutional varieties. Id., ¶44.

¶147 The problem with the majority's invocation of alleged

developments in the law is that many of the "developments" cited

were in existence when Shiffra was decided in 1993. For

example, Wis. Stat. § 972.11(2)(b), the rape shield statute, was

enacted in 1975. See § 12, ch. 184, Laws of 1975. The

majority's reliance on State v. Clark, 87 Wis. 2d 804, 815, 275

N.W.2d 715 (1979), and State v. Jensen, 147 Wis. 2d 240, 250-51, 432 N.W.2d 913 (1988), suffers from a similar shortcoming. See

majority op., ¶42. The majority does not fully explain how

statutes and case law that were available to the Shiffra court

could subsequently undermine that court's determination other

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than to acknowledge that the Shiffra court did not consider

them. See id., ¶42 n.16.7

¶148 Likewise, the recent amendments to Article I, § 9m of

the Wisconsin Constitution do not compel the overruling of

Shiffra. Shiffra was grounded in the defendant's constitutional

right to present a complete defense. See Shiffra, 175

Wis. 2d at 605 ("Under the due process clause, criminal

defendants must be given a meaningful opportunity to present a

complete defense. . . . [A]n in camera review of evidence

achieves the proper balance between the defendant's rights and

the state's interests in protection of its citizens."). The

recent constitutional amendment cannot "undermine" this

rationale because it explicitly protects a defendant's federal

constitutional due process rights, including the right to

present a complete defense. See Wis. Const. art. I, § 9m(6)

(setting forth that sec. 9m "may not be interpreted to supersede

a defendant's federal constitutional rights").

¶149 The majority errs by overruling our longstanding precedent. Pursuant to Shiffra, the bar defendants must clear

to be entitled to an in camera review is a high one, to say

7The majority also attempts to ascribe outsized importance to a recently amended constitutional victim's rights provision, arguing that the Shiffra court did not "appreciate [the] importance" of the statutory changes cited "within the broader context of the subsequently enacted statutory and constitutional victim's rights provisions . . . ." See majority op., ¶42 n.16. But the constitutional changes did not mark the beginning of the trends the majority observes, which were well-established by the time the constitution was amended. The relevant information was available and could have been considered by the Shiffra court if it deemed it relevant to its analysis.

17 No. 2019AP664-CR.awb

nothing of actually being entitled to a victim's health records.

Absent the Shiffra procedure, both defendants and the court

system as a whole are put at a disadvantage in seeking the

truth.

¶150 Instead of recognizing the delicate balancing the

Shiffra standard embodies, the majority upsets the balance. In

doing so, it replaces a "workable solution to a difficult

problem," hewn over three decades, with no solution at all. I

would leave the Shiffra framework intact rather than cast it

aside, leaving nothing in its place.

¶151 For the foregoing reasons, I respectfully dissent.

¶152 I am authorized to state that Chief Justice ANNETTE

KINGSLAND ZIEGLER joins this dissent.

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