905.03 Annotation
A videotaped interview of a crime victim conducted by the alleged perpetrator's spouse was not privileged as attorney communication because it was made in the presence of a 3rd-party, the victim, and was not confidential. Estrada v. State,
228 Wis. 2d 459,
596 N.W.2d 496 (Ct. App. 1999).
905.03 Annotation
Attorney-client privilege in Wisconsin. Stover and Koesterer. 59 MLR 227.
905.03 Annotation
Attorney-client privilege: Wisconsin's approach to exceptions. 72 MLR 582 (1989).
905.04
905.04
Physician-patient, registered nurse-patient, chiropractor-patient, psychologist-patient, social worker-patient, marriage and family therapist-patient and professional counselor-patient privilege. 905.04(1)(a)
(a) "Chiropractor" means a person licensed under
s. 446.02, or a person reasonably believed by the patient to be a chiropractor.
905.04(1)(b)
(b) A communication or information is "confidential" if not intended to be disclosed to 3rd persons other than those present to further the interest of the patient in the consultation, examination, or interview, or persons reasonably necessary for the transmission of the communication or information or persons who are participating in the diagnosis and treatment under the direction of the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor, including the members of the patient's family.
905.04(1)(bm)
(bm) "Marriage and family therapist" means an individual who is certified as a marriage and family therapist under
ch. 457 or an individual reasonably believed by the patient to be a marriage and family therapist.
905.04(1)(c)
(c) "Patient" means an individual, couple, family or group of individuals who consults with or is examined or interviewed by a physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor.
905.04(1)(d)
(d) "Physician" means a person as defined in
s. 990.01 (28), or reasonably believed by the patient so to be.
905.04(1)(dm)
(dm) "Professional counselor" means an individual who is certified as a professional counselor under
ch. 457 or an individual reasonably believed by the patient to be a professional counselor.
905.04(1)(e)
(e) "Psychologist" means a licensed psychologist, as that term is defined in
s. 455.01 (4), or a person reasonably believed by the patient to be a psychologist.
905.04(1)(f)
(f) "Registered nurse" means a nurse who is licensed under
s. 441.06 or licensed as a registered nurse in a party state, as defined in
s. 441.50 (2) (j), or a person reasonably believed by the patient to be a registered nurse.
905.04(1)(g)
(g) "Social worker" means an individual who is certified as a social worker under
ch. 457 or an individual reasonably believed by the patient to be a social worker.
905.04(2)
(2) General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made or information obtained or disseminated for purposes of diagnosis or treatment of the patient's physical, mental or emotional condition, among the patient, the patient's physician, the patient's registered nurse, the patient's chiropractor, the patient's psychologist, the patient's social worker, the patient's marriage and family therapist, the patient's professional counselor or persons, including members of the patient's family, who are participating in the diagnosis or treatment under the direction of the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor.
905.04(3)
(3) Who may claim the privilege. The privilege may be claimed by the patient, by the patient's guardian or conservator, or by the personal representative of a deceased patient. The person who was the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor may claim the privilege but only on behalf of the patient. The authority so to do is presumed in the absence of evidence to the contrary.
905.04(4)(a)(a)
Proceedings for hospitalization, guardianship, protective services or protective placement. There is no privilege under this rule as to communications and information relevant to an issue in proceedings to hospitalize the patient for mental illness, to appoint a guardian under
s. 880.33, for court-ordered protective services or protective placement or for review of guardianship, protective services or protective placement orders, if the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor in the course of diagnosis or treatment has determined that the patient is in need of hospitalization, guardianship, protective services or protective placement.
905.04(4)(am)
(am)
Proceedings for guardianship. There is no privilege under this rule as to information contained in a statement concerning the mental condition of the patient furnished to the court by a physician or psychologist under
s. 880.33 (1).
905.04(4)(b)
(b)
Examination by order of judge. If the judge orders an examination of the physical, mental or emotional condition of the patient, or evaluation of the patient for purposes of guardianship, protective services or protective placement, communications made and treatment records reviewed in the course thereof are not privileged under this section with respect to the particular purpose for which the examination is ordered unless the judge orders otherwise.
905.04(4)(c)
(c)
Condition an element of claim or defense. There is no privilege under this section as to communications relevant to or within the scope of discovery examination of an issue of the physical, mental or emotional condition of a patient in any proceedings in which the patient relies upon the condition as an element of the patient's claim or defense, or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of the party's claim or defense.
905.04(4)(d)
(d)
Homicide trials. There is no privilege in trials for homicide when the disclosure relates directly to the facts or immediate circumstances of the homicide.
905.04(4)(e)
(e)
Abused or neglected child or abused unborn child. 905.04(4)(e)2.
2. There is no privilege in situations where the examination of an abused or neglected child creates a reasonable ground for an opinion of the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor that the abuse or neglect was other than accidentally caused or inflicted by another.
905.04(4)(e)3.
3. There is no privilege in situations where the examination of the expectant mother of an abused unborn child creates a reasonable ground for an opinion of the physician, registered nurse, chiropractor, psychologist, social worker, marriage and family therapist or professional counselor that the physical injury inflicted on the unborn child was caused by the habitual lack of self-control of the expectant mother of the unborn child in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree.
905.04(4)(f)
(f)
Tests for intoxication. There is no privilege concerning the results of or circumstances surrounding any chemical tests for intoxication or alcohol concentration, as defined in
s. 340.01 (1v).
905.04(4)(g)
(g)
Paternity proceedings. There is no privilege concerning testimony about the medical circumstances of a pregnancy or the condition and characteristics of a child in a proceeding to determine the paternity of that child under
ss. 767.45 to
767.53.
905.04(4)(h)
(h)
Reporting wounds and burn injuries. There is no privilege regarding information contained in a report under
s. 146.995 pertaining to a patient's name and type of wound or burn injury.
905.04(4)(i)
(i)
Providing services to court in juvenile matters. There is no privilege regarding information obtained by an intake worker or dispositional staff in the provision of services under
s. 48.067,
48.069,
938.067 or
938.069. An intake worker or dispositional staff member may disclose information obtained while providing services under
s. 48.067 or
48.069 only as provided in
s. 48.78 and may disclose information obtained while providing services under
s. 938.067 or
938.069 only as provided in
s. 938.78.
905.04 History
History: Sup. Ct. Order, 59 Wis. 2d R121;
1975 c. 393;
1977 c. 61,
418;
1979 c. 32 s.
92 (1);
1979 c. 221,
352;
1983 a. 400,
535;
1987 a. 233,
264; Sup. Ct. Order, 151 Wis. 2d xxi (1989);
1991 a. 32,
39,
160;
1993 a. 98;
1995 a. 77,
275,
436;
1997 a. 292;
1999 a. 22.
905.04 Annotation
The drawing and testing of blood solely for diagnostic purposes and not government-instigated purposes is not a "search or seizure" even if the testing physician testifies at a negligent homicide trial. State v. Jenkins,
80 Wis. 2d 426,
259 N.W.2d 109.
905.04 Annotation
Sub. (4) (a) applies to proceedings to extend a commitment under the sex crimes act. State v. Hungerford,
84 Wis. 2d 236,
267 N.W.2d 258 (1978).
905.04 Annotation
By entering a plea of not guilty by reason of mental disease or defect, the defendant lost the physician-patient privilege by virtue of s. 905.04 (4) (c) and the confidentiality of treatment records under s. 51.30 (4) (b) 4. State v. Taylor,
142 Wis. 2d 36,
417 N.W.2d 192 (Ct. App. 1987).
905.04 Annotation
A psychotherapist's duty to 3rd parties for dangerous patients' intentional behavior is discussed. Schuster v. Altenberg,
144 Wis. 2d 223,
424 N.W.2d 159 (1988).
905.04 Annotation
A defendant did not have standing to complain that a physician's testimony violated a witness's physician/patient's privilege under s. 905.04; the defendant was not authorized to claim the privilege on the patient's behalf. State v. Echols,
152 Wis. 2d 725,
449 N.W.2d 320 (Ct. App. 1989).
905.04 Annotation
Under sub. (4) (g), the history of a pregnancy is discoverable. The court may permit discovery of the history as long as information regarding the mother's sexual relations outside of the conceptive period is eliminated. In re Paternity of J.S.P.
158 Wis. 2d 100,
461 N.W.2d 794 (Ct. App. 1990).
905.04 Annotation
Because under sub. (4) (f) there is no privilege for chemical tests for intoxication, the results of a test taken for diagnostic purposes are admissible in an OMVWI trial. City of Muskego v. Godec,
167 Wis. 2d 536,
482 N.W.2d 79 (1992).
905.04 Annotation
A patient's mere presence in a physician's office is not within the ambit of this privilege. A defendant charged with trespass to a medical facility, s. 943.145, is entitled to compulsory process to determine if any patients present at the time of the alleged incident had relevant evidence. State v. Migliorino,
170 Wis. 2d 576,
489 N.W.2d 678 (Ct. App. 1992).
905.04 Annotation
To be entitled to an in camera inspection of privileged records, a criminal defendant must show that the sought after evidence is relevant and helpful to the defense or necessary to a fair determination of guilt or innocence. Failure of the record's subject to agree to inspection is grounds for sanctions, including suppressing the record subject's testimony. State v. Shiffra,
175 Wis. 2d 600,
499 N.W.2d 719 (Ct. App. 1993).
905.04 Annotation
The patient's objectively reasonable expectations of confidentiality from the medical provider are the proper gauge of the privilege. State v. Locke,
177 Wis. 2d 590,
502 N.W.2d 891 (Ct. App. 1993).
905.04 Annotation
When a patient's medical condition is at issue the patient-client privilege gives way. Wikrent v. Toys "R" Us,
179 Wis. 2d 297,
507 N.W.2d 130 (Ct. App. 1993).
905.04 Annotation
Ex parte contacts between several treating physicians after the commencement of litigation did not violate this section. This section applies only to judicial proceedings and places restrictions on lawyers, not physicians. Limited ex parte contacts between defense counsel and plaintiff's physicians are permissible, but ex parte discovery is not. Steinberg v. Jensen,
194 Wis. 2d 440,
534 N.W.2d 361 (1995).
905.04 Annotation
There is no general exception to privileged status for communications gathered from incarcerated persons. State v. Joseph P.
200 Wis. 2d 227,
546 N.W.2d 494 (Ct. App. 1996).
905.04 Annotation
Both initial sex offender commitment and discharge hearings under ch. 980 are "proceedings for hospitalization" within the exception to the privilege under sub. (4) (a). State v. Zanelli,
212 Wis. 2d 358,
569 N.W.2d 301 (Ct. App. 1997).
905.04 Annotation
A party may not challenge on appeal an in camera review of records conducted at his own request. State v. Darcy N. K. 218 W (d) 640,
581 N.W.2d 567 (Ct. App. 1998).
905.04 Annotation
This section does not regulate the conduct of physicians outside of a courtroom. Accordingly it does not give a patient the right to exclude others from a treatment area. State v. Thompson,
222 Wis. 2d 179,
585 N.W.2d 905 (Ct. App. 1998).
905.04 Annotation
When a motion has been made seeking a minor victim's health care records, the state shall give notice to the victim and the victim's parents, providing a reasonable time to object to the disclosure. If the victim does not expressly consent to disclosure, the state shall not waive the materiality hearing under Schiffra. Jessica J.L. v. State,
223 Wis. 2d 622,
589 N.W.2d 660 (Ct. App. 1998).
905.04 Annotation
The psychotherapist-patient privilege does not automatically or absolutely foreclose the introduction of a therapeutic communication. When a therapist had reasonable cause to believe a patient was dangerous and that contacting police would prevent harm and facilitate the patient's hospitalization, the patient's statements fell within a dangerous patient exception to the privilege. State v. Agacki,
226 Wis. 2d 349,
595 N.W.2d 31 (Ct. App. 1999).
905.04 Annotation
Release of records containing information of previous assaultive behavior by a nursing home resident was not prohibited by the physician-patient privilege. A nursing home resident does not have a reasonable expectation of privacy in assaultive conduct. Crawford v. Care Concepts, Inc. 2000 WI App 59,
233 Wis. 2d 609,
608 N.W.2d 694.
905.04 Annotation
A person claiming privilege in a communication with a person who was not a medical provider under sub. (1) (d)-(g) has the burden of establishing that he or she reasonably believed the person to be a medical provider. U.S. v. Schwenson,
942 F. Supp. 902 (1996).
905.04 Annotation
Privilege under this section is not a principle of substantive law, but merely an evidentiary rule applicable at all stages of civil and criminal proceedings, except actual trial on the merits in homicide cases. 64 Atty. Gen. 82.
905.05
905.05
Husband-wife privilege. 905.05(1)
(1)
General rule of privilege. A person has a privilege to prevent the person's spouse or former spouse from testifying against the person as to any private communication by one to the other made during their marriage.
905.05(2)
(2) Who may claim the privilege. The privilege may be claimed by the person or by the spouse on the person's behalf. The authority of the spouse to do so is presumed in the absence of evidence to the contrary.
905.05(3)
(3) Exceptions. There is no privilege under this rule:
905.05(3)(a)
(a) If both spouses or former spouses are parties to the action.
905.05(3)(b)
(b) In proceedings in which one spouse or former spouse is charged with a crime against the person or property of the other or of a child of either, or with a crime against the person or property of a 3rd person committed in the course of committing a crime against the other.
905.05(3)(c)
(c) In proceedings in which a spouse or former spouse is charged with a crime of pandering or prostitution.
905.05(3)(d)
(d) If one spouse or former spouse has acted as the agent of the other and the private communication relates to matters within the scope of the agency.
905.05 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R130 (1973);
1991 a. 32.
905.05 Cross-reference
Cross-reference: As to testimony of husband and wife in paternity action regarding child born in wedlock, see s.
891.39.
905.05 Annotation
A wife's testimony as to statements made by her husband was admissible where the statements were made in the presence of 2 witnesses. Abraham v. State,
47 Wis. 2d 44,
176 N.W.2d 349.
905.05 Annotation
A wife can be compelled to testify as to whether or not he was working or collecting unemployment insurance, since such facts are known to 3rd persons. Kain v. State,
48 Wis. 2d 212,
179 N.W.2d 777.
905.05 Annotation
A wife's observation, without her husband's knowledge, of her husband's criminal act committed on a public street was neither a "communication" nor "private" within meaning of sub. (1). State v. Sabin,
79 Wis. 2d 302,
255 N.W.2d 320.
905.06
905.06
Communications to members of the clergy. 905.06(1)(1)
Definitions. As used in this section:
905.06(1)(a)
(a) A "member of the clergy" is a minister, priest, rabbi, or other similar functionary of a religious organization, or an individual reasonably believed so to be by the person consulting the individual.
905.06(1)(b)
(b) A communication is "confidential" if made privately and not intended for further disclosure except to other persons present in furtherance of the purpose of the communication.
905.06(2)
(2) General rule of privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the member's professional character as a spiritual adviser.
905.06(3)
(3) Who may claim the privilege. The privilege may be claimed by the person, by the person's guardian or conservator, or by the person's personal representative if the person is deceased. The member of the clergy may claim the privilege on behalf of the person. The member of the clergy's authority so to do is presumed in the absence of evidence to the contrary.
905.06 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R135 (1973);
1991 a. 32.
905.06 Annotation
An out-of-court disclosure by a priest that the defendant would lead police to the victim's grave was not privileged under this section. State v. Kunkel,
137 Wis. 2d 172,
404 N.W.2d 69 (Ct. App. 1987).
905.06 Annotation
Should Clergy Hold the Priest-Penitent Privilege? Mazza. 82 MLR 171 (1998).
905.065
905.065
Honesty testing devices. 905.065(1)
(1)
Definition. In this section, "honesty testing device" means a polygraph, voice stress analysis, psychological stress evaluator or any other similar test purporting to test honesty.
905.065(2)
(2) General rule of the privilege. A person has a privilege to refuse to disclose and to prevent another from disclosing any oral or written communications during or any results of an examination using an honesty testing device in which the person was the test subject.
905.065(3)
(3) Who may claim privilege. The privilege may be claimed by the person, by the person's guardian or conservator or by the person's personal representative, if the person is deceased.
905.065(4)
(4) Exception. There is no privilege under this section if there is a valid and voluntary written agreement between the test subject and the person administering the test.
905.065 History
History: 1979 c. 319.
905.065 Annotation
A distinction exists between an inquiry into the taking of a polygraph and an inquiry into its results. An offer to take a polygraph is relevant to an assessment of an offeror's credibility. State v. Wofford,
202 Wis. 2d 524,
551 N.W.2d 46 (Ct. App. 1996).
905.07
905.07
Political vote. Every person has a privilege to refuse to disclose the tenor of the person's vote at a political election conducted by secret ballot unless the vote was cast illegally.
905.07 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R139 (1973);
1991 a. 32.
905.08
905.08
Trade secrets. A person has a privilege, which may be claimed by the person or the person's agent or employee, to refuse to disclose and to prevent other persons from disclosing a trade secret as defined in
s. 134.90 (1) (c), owned by the person, if the allowance of the privilege will not tend to conceal fraud or otherwise work injustice. When disclosure is directed, the judge shall take such protective measure as the interests of the holder of the privilege and of the parties and the furtherance of justice may require.
905.08 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R140 (1973);
1985 a. 236.
905.09
905.09
Law enforcement records. The federal government or a state or a subdivision thereof has a privilege to refuse to disclose investigatory files, reports and returns for law enforcement purposes except to the extent available by law to a person other than the federal government, a state or subdivision thereof. The privilege may be claimed by an appropriate representative of the federal government, a state or a subdivision thereof.
