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 may be 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). See also State v. Lynch,
2015 WI App 2,
359 Wis. 2d 482,
859 N.W.2d 125,
11-2680.
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, Inc.,
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 439,
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),
95-2547.
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),
96-2159.
905.04 Annotation
A party may not challenge on appeal an in camera review of records conducted at the party's own request. State v. Darcy N.K.,
218 Wis. 2d 640,
581 N.W.2d 567 (Ct. App. 1998),
97-0458.
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),
97-2744.
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,
175 Wis. 2d 600 (1993). Jessica J.L. v. State,
223 Wis. 2d 622,
589 N.W.2d 660 (Ct. App. 1998),
97-1368. Overruled on other grounds. State v. Johnson,
2020 WI App 73,
394 Wis. 2d 807,
951 N.W.2d 616,
19-0664.
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),
97-3463.
905.04 Annotation
Under the
Schiffra,
175 Wis. 2d 600 (1993), test, an in camera inspection of the victim's mental health records was allowed. The defendant established more than the mere possibility that the requested records might be necessary for a fair determination of guilt or innocence. State v. Walther,
2001 WI App 23,
240 Wis. 2d 619,
623 N.W.2d 205,
99-2058.
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. The information may be released by court order. Crawford v. Care Concepts, Inc.,
2001 WI 45,
243 Wis. 2d 119,
625 N.W.2d 876,
99-0863.
905.04 Annotation
The preliminary showing for an in camera review of a victim's mental health records 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 of other evidence available to the defendant. The information will be necessary to a determination of guilt or innocence if it tends to create a reasonable doubt that might not otherwise exist. State v. Green,
2002 WI 68,
253 Wis. 2d 356,
646 N.W.2d 298,
00-1392.
905.04 Annotation
The test set out in
Shiffra,
175 Wis. 2d 600 (1993), and
Green,
2002 WI 68, pertaining to access to privileged mental health records applies to a defendant requesting confidential records during postconviction discovery, and the defendant should be required to meet the preliminary
Shiffra-Green burden. State v. Robertson,
2003 WI App 84,
349 Wis. 2d 349,
661 N.W.2d 105,
02-1718.
905.04 Annotation
Communications with an unlicensed therapist were privileged because of the patient's reasonable expectation that they would be and because the unlicensed therapist worked under the direction of a physician. Johnson v. Rogers Memorial Hospital, Inc.,
2005 WI 114,
283 Wis. 2d 384,
627 N.W.2d 890, 03-00784.
905.04 AnnotationThe 2020 constitutional amendment creating
article I, section 9m, of the Wisconsin Constitution grants standing to a crime victim to oppose and to make arguments supporting the victim's opposition to a defendant's
Shiffra,
175 Wis. 2d 600 (1993), motion for an in camera review. That grant of standing applies retrospectively to a victim's request for standing. Article I, section 9m, therefore abrogates the holding regarding standing in
Jessica J.L.,
223 Wis. 2d 622 (1998). State v. Johnson,
2020 WI App 73,
394 Wis. 2d 807,
951 N.W.2d 616,
19-0664.
905.04 Annotation
The 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.
905.04 Annotation
A person claiming a privilege in a communication with a person who was not a medical provider under sub. (1) (d) to (g) has the burden of establishing that he or she reasonably believed the person to be a medical provider. United States v. Schwenson,
942 F. Supp. 902 (1996).
905.045
905.045
Domestic violence or sexual assault advocate-victim privilege. 905.045(1)(a)
(a) “Abusive conduct" means abuse, as defined in s.
813.122 (1) (a), of a child, as defined in s.
813.122 (1) (b), interspousal battery, as described under s.
940.19 or
940.20 (1m), domestic abuse, as defined in s.
813.12 (1) (am), sexual exploitation by a therapist under s.
940.22, sexual assault under s.
940.225, human trafficking involving a commercial sex act under s.
940.302, or child sexual abuse under s.
948.02,
948.025, or
948.05 to
948.11.
905.045(1)(c)
(c) A communication or information is “confidential" if not intended to be disclosed to 3rd persons other than persons present to further the interest of the person receiving counseling, assistance, or support services, persons reasonably necessary for the transmission of the communication or information, and persons who are participating in providing counseling, assistance, or support services under the direction of a victim advocate, including family members of the person receiving counseling, assistance, or support services and members of any group of individuals with whom the person receives counseling, assistance, or support services.
905.045(1)(d)
(d) “Victim" means an individual who has been the subject of abusive conduct or who alleges that he or she has been the subject of abusive conduct. It is immaterial that the abusive conduct has not been reported to any government agency.
905.045(1)(e)
(e) “Victim advocate" means an individual who is an employee of or a volunteer for an organization the purpose of which is to provide counseling, assistance, or support services free of charge to a victim.
905.045(2)
(2)
General rule of privilege. A victim has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made or information obtained or disseminated among the victim, a victim advocate who is acting in the scope of his or her duties as a victim advocate, and persons who are participating in providing counseling, assistance, or support services under the direction of a victim advocate, if the communication was made or the information was obtained or disseminated for the purpose of providing counseling, assistance, or support services to the victim.
905.045(3)
(3)
Who may claim the privilege. The privilege may be claimed by the victim, by the victim's guardian or conservator, or by the victim's personal representative if the victim is deceased. The victim advocate may claim the privilege on behalf of the victim. The victim advocate's authority to do so is presumed in the absence of evidence to the contrary.
905.045(4)
(4)
Exceptions. Subsection
(2) does not apply to any report concerning child abuse that a victim advocate is required to make under s.
48.981 or concerning a threat of violence in or targeted at a school that a victim advocate is required to make under s.
175.32.
905.045(5)
(5)
Relationship to s. 905.04. If a communication or information that is privileged under sub.
(2) is also a communication or information that is privileged under s.
905.04 (2), the provisions of s.
905.04 supersede this section with respect to that communication or information.
905.05
905.05
Husband-wife and domestic partner privilege. 905.05(1)(1)
General rule of privilege. A person has a privilege to prevent the person's spouse or former spouse or domestic partner or former domestic partner from testifying against the person as to any private communication by one to the other made during their marriage or domestic partnership. As used in this section, “domestic partner" means a domestic partner under ch.
770.
905.05(2)
(2)
Who may claim the privilege. The privilege may be claimed by the person or by the spouse or domestic partner on the person's behalf. The authority of the spouse or domestic partner 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 or domestic partners or former domestic partners are parties to the action.
905.05(3)(b)
(b) In proceedings in which one spouse or former spouse or domestic partner or former domestic partner 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 or domestic partner or former domestic partner is charged with a crime of pandering or prostitution.
905.05(3)(d)
(d) If one spouse or former spouse or domestic partner or former domestic partner 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;
2009 a. 28.
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 when the statements were made in the presence of two witnesses. Abraham v. State,
47 Wis. 2d 44,
176 N.W.2d 349 (1970).
905.05 Annotation
Spouses can be compelled to testify as to whether the other was working or collecting unemployment insurance, since such facts are known to third persons. Kain v. State,
48 Wis. 2d 212,
179 N.W.2d 777 (1970).
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 the meaning of sub. (1). State v. Sabin,
79 Wis. 2d 302,
255 N.W.2d 320 (1977).
905.05 Annotation
The privilege under sub. (1) belongs to the person against whom testimony is being offered. While an accused may invoke the privilege to prevent his or her spouse from testifying against him or her, the witness spouse may not invoke it to prevent his or her own testimony. Umhoefer v. Police & Fire Commission,
2002 WI App 217, 257 Wis. 2d. 539,
652 N.W.2d 412,
01-3468.
905.05 Annotation
Under sub. (3) (b), it is irrelevant whether the acts of the defendant that constitute a crime against a third party are the same acts that constitute a crime against the spouse or different acts. State v. Richard G.B.,
2003 WI App 13,
259 Wis. 2d 730,
656 N.W.2d 469,
02-1302.
905.05 Annotation
When all outgoing telephone calls made by inmates of a jail were recorded and that policy was disclosed to all inmates, the defendant knowingly exposed the content of the call to a third party. That constituted a waiver of any marital privilege. State v. Eison,
2011 WI App 52,
332 Wis. 2d 331,
797 N.W.2d 890,
10-0909.
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(4)
(4)
Exceptions. There is no privilege under this section concerning observations or information that a member of the clergy, as defined in s.
48.981 (1) (cx), is required to report as suspected or threatened child abuse under s.
48.981 (2) (bm) or as a threat of violence in or targeted at a school under s.
175.32.
905.06 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R135 (1973);
1991 a. 32;
2003 a. 279;
2005 a. 253;
2017 a. 143.
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 523,
551 N.W.2d 46 (Ct. App. 1996),
95-0979.
905.065 Annotation
The results of polygraph examinations are inadmissible in civil cases. While an offer to take a polygraph examination may be relevant to the offeror's credibility, that a person agreed to a polygraph at the request of law enforcement has not been found admissible and could not be without proof that the person believed the results would accurately indicate whether the person was lying. Estate of Neumann v. Neumann,
2001 WI App 61,
242 Wis. 2d 205,
626 N.W.2d 821,
00-0557.
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.
905.09 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R142 (1973).
905.10
905.10
Identity of informer. 905.10(1)(1)
Rule of privilege. The federal government or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.
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 determined whether an informer's testimony was necessary to a fair trial. The proper test is whether the testimony the informer can give is relevant to an issue material to the defense and necessary to the determination of guilt or innocence. It is not for the judge to determine whether the testimony will be helpful. State v. Outlaw,
108 Wis. 2d 112,
321 N.W.2d 145 (1982).
905.10 Annotation
Discussing the application of the informer privilege to communications tending to identify the informer and consideration by the trial court under sub. (3) (c) of the privileged information in determining reasonable suspicion for an investigative seizure. State v. Gordon,
159 Wis. 2d 335,
464 N.W.2d 91 (Ct. App. 1990).
905.10 Annotation
When the defendant knew an informer's identity but sought to put the informer's role as an informer before the jury to support the defendant's defense that the informer 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).
905.10 Annotation
When there was sufficient evidence in the record to permit a rational court to conclude that a reasonable probability existed that the informer could provide relevant testimony necessary to a fair determination on the issue of guilt or innocence, the decision to forego an in camera hearing was within the discretion of the trial court. State v. Norfleet,
2002 WI App 140,
254 Wis. 2d 569,
647 N.W.2d 341,
01-1374.
905.10 Annotation
Once a defendant has made an initial showing that there is a reasonable probability that an informer may be able to give testimony necessary to the determination of guilt or innocence, the state has the opportunity to show, in camera, facts relevant to whether the informer can provide that testimony. Only if the court determines that an informer's testimony is necessary to the defense in that it could create a reasonable doubt of the defendant's guilt, must the privilege to not disclose the informer give way. The state may present evidence that an informer's testimony is unnecessary. State v. Vanmanivong,
2003 WI 41,
261 Wis. 2d 202,
661 N.W.2d 76,
00-3257.
905.10 Annotation
The trial court erred when upon finding affidavits of confidential informers insufficient it, on its own initiative and without contacting either party's attorney, requested additional information from law enforcement. If affidavits are insufficient, the court must hold an in camera hearing and take the testimony of the informers to determine if their testimony is relevant and material to the defendant's defense. State v. Vanmanivong,
2003 WI 41,
261 Wis. 2d 202,
661 N.W.2d 76,
00-3257.
905.10 Annotation
The required showing to trigger an in camera review under sub. (3) (b) is a reasonable possibility, grounded in the facts and circumstances of the case, that a confidential informer may have information necessary to the defendant's theory of defense. The phrase “may be able to give testimony" confirms that the defendant's initial burden under the statute involves only a possibility the confidential informer may have information necessary to the defense, but it must be a reasonable possibility. A circuit court should consider all of the evidence to determine whether to grant an in camera review, not just the contents of the defendant's motion. State v. Nellessen,
2014 WI 84,
360 Wis. 2d 493,
849 N.W.2d 654,
12-0150. See also State v. Toliver,
2014 WI 85,
356 Wis. 2d 642,
851 N.W.2d 251,
12-0393.
