905.10(2)
(2) Who may claim. The privilege may be claimed by an appropriate representative of the federal government, regardless of whether the information was furnished to an officer of the government or of a state or subdivision thereof. The privilege may be claimed by an appropriate representative of a state or subdivision if the information was furnished to an officer thereof.
905.10(3)(a)(a)
Voluntary disclosure; informer a witness. No privilege exists under this rule if the identity of the informer or the informer's interest in the subject matter of the informer's communication has been disclosed to those who would have cause to resent the communication by a holder of the privilege or by the informer's own action, or if the informer appears as a witness for the federal government or a state or subdivision thereof.
905.10(3)(b)
(b)
Testimony on merits. If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of the issue of guilt or innocence in a criminal case or of a material issue on the merits in a civil case to which the federal government or a state or subdivision thereof is a party, and the federal government or a state or subdivision thereof invokes the privilege, the judge shall give the federal government or a state or subdivision thereof an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits but the judge may direct that testimony be taken if the judge finds that the matter cannot be resolved satisfactorily upon affidavit. If the judge finds that there is a reasonable probability that the informer can give the testimony, and the federal government or a state or subdivision thereof elects not to disclose the informer's identity, the judge on motion of the defendant in a criminal case shall dismiss the charges to which the testimony would relate, and the judge may do so on the judge's own motion. In civil cases, the judge may make an order that justice requires. Evidence submitted to the judge shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the federal government, state or subdivision thereof. All counsel and parties shall be permitted to be present at every stage of proceedings under this subdivision except a showing in camera at which no counsel or party shall be permitted to be present.
905.10(3)(c)
(c)
Legality of obtaining evidence. If information from an informer is relied upon to establish the legality of the means by which evidence was obtained and the judge is not satisfied that the information was received from an informer reasonably believed to be reliable or credible, the judge may require the identity of the informer to be disclosed. The judge shall on request of the federal government, state or subdivision thereof, direct that the disclosure be made in camera. All counsel and parties concerned with the issue of legality shall be permitted to be present at every stage of proceedings under this subdivision except a disclosure in camera at which no counsel or party shall be permitted to be present. If disclosure of the identity of the informer is made in camera, the record thereof shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the appropriate federal government, state or subdivision thereof.
905.10 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R143 (1973);
1991 a. 32.
905.10 Annotation
The trial judge incorrectly applied the test of whether an informer's testimony was necessary to a fair trial. State v. Outlaw,
108 Wis. 2d 112,
321 N.W.2d 145 (1982).
905.10 Annotation
The application of the informer privilege to communications tending to identify the informer and consideration by the trial court under sub. (3) (c) of such privileged information in determining reasonable suspicion for an investigative seizure is discussed. State v. Gordon,
159 Wis. 2d 335, 464 NW 91 (Ct. App. 1990).
905.10 Annotation
Where the defendant knew an informant's identity but sought to put the informant's role as an informant before the jury to support his defense that the informant actually committed the crime, the judge erred in not permitting the jury to hear the evidence. State v. Gerard,
180 Wis. 2d 327,
509 N.W.2d 112 (Ct. App. 1993).
905.10 Annotation
The state is the holder of the privilege; disclosure by an informer's attorney is not "by the informer's own action". The privilege does not die with the informer. State v. Lass,
194 Wis. 2d 592,
535 N.W.2d 904 (Ct. App. 1995).
905.11
905.11
Waiver of privilege by voluntary disclosure. A person upon whom this chapter confers a privilege against disclosure of the confidential matter or communication waives the privilege if the person or his or her predecessor, while holder of the privilege, voluntarily discloses or consents to disclosure of any significant part of the matter or communication. This section does not apply if the disclosure is itself a privileged communication.
905.11 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R150 (1973);
1987 a. 355; Sup. Ct. Order No.
93-03,179 Wis. 2d xv (1993).
905.11 Annotation
Testimony of an accomplice who waived her privilege is admissible even though she had not been tried or granted immunity. State v. Wells,
51 Wis. 2d 477,
187 N.W.2d 328.
905.11 Annotation
A litigant's request to see his or her file that is in the possession of current or former counsel does not waive the attorney-client and work product privileges and allow other parties to the litigation discovery of those files. Borgwardt v. Redlin,
196 Wis. 2d 342,
538 N.W.2d 581 (Ct. App. 1995).
905.12
905.12
Privileged matter disclosed under compulsion or without opportunity to claim privilege. Evidence of a statement or other disclosure of privileged matter is not admissible against the holder of the privilege if the disclosure was (a) compelled erroneously or (b) made without opportunity to claim the privilege.
905.12 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R151 (1973).
905.13
905.13
Comment upon or inference from claim of privilege; instruction. 905.13(1)(1)
Comment or inference not permitted. The claim of a privilege, whether in the present proceeding or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom.
905.13(2)
(2) Claiming privilege without knowledge of jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to facilitate the making of claims of privilege without the knowledge of the jury.
905.13(3)
(3) Jury instruction. Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to an instruction that no inference may be drawn therefrom.
905.13(4)
(4) Application; self-incrimination. Subsections (1) to
(3) do not apply in a civil case with respect to the privilege against self-incrimination.
905.13 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R153 (1973);
1981 c. 390.
905.13 Annotation
The prohibition against allowing comments on or drawing an inference from a 3rd-party witness's refusal to testify on 5th amendment grounds does not deny a criminal defendant's constitutional right to equal protection. State v. Heft,
185 Wis. 2d 289,
517 N.W.2d 494 (1994).
905.14
905.14
Privilege in crime victim compensation proceedings. 905.14(1)(1) Except as provided in
sub. (2), no privilege under this chapter exists regarding communications or records relevant to an issue of the physical, mental or emotional condition of the claimant or victim in a proceeding under
ch. 949 in which that condition is an element.
905.14(2)
(2) The lawyer-client privilege applies in a proceeding under
ch. 949.
905.14 History
History: 1979 c. 189.
905.15
905.15
Privilege in use of federal tax return information. 905.15(1)(1) An employee of the department of health and family services, the department of workforce development or a county department under
s. 46.215,
46.22 or
46.23 or a member of a governing body of a federally recognized American Indian tribe who is authorized by federal law to have access to or awareness of the federal tax return information of another in the performance of duties under
s. 49.19 or
49.45 or
7 USC 2011 to
2049 may claim privilege to refuse to disclose the information and the source or method by which he or she received or otherwise became aware of the information.
905.15(2)
(2) An employee or member specified in
sub. (1) may not waive the right to privilege under
sub. (1) or disclose federal tax return information or the source of that information except as provided by federal law.
