Chapter 905

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.

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 (1971).

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 does not 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), 94-2701.

905.11 Annotation A lawyer’s voluntary production of documents in response to opposing counsel’s discovery request does not constitute a waiver of the attorney-client privilege under this section when the lawyer does not recognize that the documents are subject to the attorney-client privilege and the documents are produced without the consent or knowledge of the client. The agency doctrine does not apply to waiver of attorney-client privilege as it relates to privileged documents. Harold Sampson Children’s Trust v. Linda Gale Sampson 1979 Trust, 2004 WI 57, 271 Wis. 2d 610, 679 N.W.2d 794, 02-1515.

905.11 Annotation The controlling principle of waiver is the privilege holder’s voluntary disclosure of any significant part of the matter or communication. It is clear from the terms of this section that a matter or communication can have several “significant parts.” The significance of any portion of a communication is measured by the importance of its subject matter to the overall communication. State v. Schmidt, 2016 WI App 45, 370 Wis. 2d 139, 884 N.W.2d 510, 15-0457.

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 third-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 services, the department of children and families 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.

905.15 History History: 1989 a. 31; 1995 a. 27 ss. 7225, 9126 (19), 9130 (4); 1997 a. 3; 2007 a. 20 s. 3779, 9121 (6) (a).

905.16 905.16 Communications to veteran mentors.

905.16(1) (1) Definitions. As used in this section:

905.16(1)(a) (a) A communication is “confidential” if not intended to be disclosed to 3rd parties other than to those persons present to further the interests of the veteran or member or to persons reasonably necessary for the transmission of the communication.

905.16(1)(b) (b) A “veteran mentor” is an individual who meets all of the following criteria:

905.16(1)(b)1. 1. Served on active duty in the U.S. armed forces or in forces incorporated in the U.S. armed forces, served in a reserve unit of the U.S. armed forces, or served in the national guard.

905.16(1)(b)2. 2. Has successfully completed a judicially approved veterans mentoring training program.

905.16(1)(b)3. 3. Has completed a background information form approved by a circuit court judge from a county that is participating in a veterans mentoring program.

905.16(1)(b)4. 4. Is on the list of persons authorized by a circuit court judge to provide assistance and advice in a veterans mentoring program.

905.16(1)(c) (c) “Veteran or member” means an individual who is serving or has served on active duty in the U.S. armed forces or in forces incorporated in the U.S. armed forces, in a reserve unit of the U.S. armed forces, or in the national guard.

905.16(1)(d) (d) “Veterans mentoring program” is a program approved by a circuit court judge to provide assistance and advice to a veteran or member.

905.16(2) (2) General rule of privilege. A veteran or member has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication made by the veteran or member to a veteran mentor while the veteran mentor is acting within the scope of his or her duties under the veterans mentoring program.

905.16(3) (3) Who may claim the privilege. The privilege may be claimed by the veteran or member, by the veteran’s or member’s guardian or conservator, or by the veteran’s or member’s personal representative if the veteran or member is deceased. The veteran mentor may claim the privilege on behalf of the veteran or member. The veteran mentor’s authority to claim the privilege on behalf of the person is presumed in the absence of evidence to the contrary.

905.16(4) (4) Exception. There is no privilege under this section as to the following:

905.16(4)(a) (a) A communication that indicates that the veteran or member plans or threatens to commit a crime or to seriously harm himself or herself.

905.16(4)(b) (b) A communication that the veteran or member has agreed in writing to allow to be disclosed as a condition of his or her participation in the veterans mentoring program.

905.16 History History: 2009 a. 210.