State v. Johnson, filed May 16, 2023, overruled State v. Shiffra.  The discussion below is outdated and is NOT good law.  

Shiffra Green motions allow your defense attorney important access to psychological records of the victim

Credibility is one of the crucial issues criminal defense attorneys deal with while fighting criminal cases.  A Shiffra Green motion is one of the important tools we use to challenge the credibility of the victim.  The motion allows criminal defense attorneys access to the mental health records of an alleged victim.

At Van Severen Law Office our criminal defense attorneys use all kinds of tools to aggressively defend you.  Opponents of the Shiffra Green doctrine find this kind of a motion to be an overreach.  It’s intrusive.  But why should you, the defendant, not be allowed access to relevant information?  If the victim has mental health issues that cause her to lie, isn’t that important?  We think so.  The truth matters the most.  Protecting a liar doesn’t.

Shiffra Green motions apply to all kinds of cases, whether you’re facing something like a sexual assault, a stalking charge, or some kind of domestic violence offense.  To discuss a Shiffra Green motion and the applicability to your criminal case, call us.  Our criminal defense attorneys are available 24/7 at (414) 270-0202.

Where did the Shiffra/Green come from?

State v. Shiffra is a court of appeals case decided in 1993.  It’s based on an alleged sexual assault incident in 1991.  Shaun A. Shiffra met Pamela P. at a bar.  The two left the bar to go to Shiffra’s apartment.  Pamela indicated that Shiffra sexually assaulted her while she was looking at shirts in Shiffra’s bedroom.  When police interviewed Pamela, she had bruises on her breasts and elbow, along with a hickey on one of her breasts.  She reported the incident to police on the same night.

Prosecutors charged Mr. Shiffra with second degree sexual assault.  The day before Mr. Shiffra’s jury trial, defense counsel filed a motion indicating “the State ha[d] provided the defendant with information which indicate[d] that … the complaining witness has a history of psychiatric problems which may affect her ability to perceive and relate truthful information.”  Eventually defense counsel moved the court to allow for inspection of the victim’s psychiatric history, psychiatric records, and other records from any doctors, hospitals, or counselors seen by Pamela P. in respect to her mental condition.

At a hearing on the motion, defense counsel indicated that the contact between Pamela and Mr. Shiffra was consensual.  Counsel indicated he had no objection to an in camera review of the records.  He made clear that the only records he sought related to “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 when they become sexual assaults of her because of her disorders.”

The state opposed the motion on various grounds, but none specifically relevant to the mental health records themselves.

The trial court’s decision

The trial court found trial counsel made an adequate showing to indicate that there were psychological problems which affected Pamela’s ability to accurately perceive what happened.  The court ordered an in camera inspectionto determine whether or not there was anything relevant to the defendant’s case.  Finally, the court adjourned the case for Pamela to determine whether she’d waive her right to doctor-client privacy.

Pamela decided she wasn’t going to turn over her records.  The court gave her 21 days to disclose the records, noting that it couldn’t force the production of said records.  Pamela still failed to disclose the records.  The trial court barred Pamela from testifying at trial.

Why was Pamela’s testimony important at trial?

Mr. Shiffra didn’t give any statement to police indicating he’d committed any kind of a crime.  The only allegation against Mr. Shiffra was based on Pamela’s statement.  Additionally, no physical evidence existed which, on its own, could prove Mr. Shiffra committed the sexual assault.

Therefore, without Pamela’s testimony, prosecutors could not prove the case against Mr. Shiffra.  More likely, prosecutors couldn’t even proceed to trial without Pamela.  There was certainly no theory Mr. Shiffra committed a sexual assault without her statement.

Importantly, this is another example of why we always advise clients to maintain their right to silence.  You never need to speak with the police.  Had Mr. Shiffra provided a statement to police, it is conceivable prosecutors could have proceeded to trial without Pamela’s statement.  Mr. Shiffra certainly could have incriminated himself enough for prosecutors to proceed on that alone.

What is an in camera inspection?

We’ve continually used the term in camera while discussing the Shiffra case.  The concept is pretty simple.  In camera inspection occurs when a judge receives evidence and must determine whether it should be provided to the other parties.  For example, in a Shiffra/Green situation, frequently the judge received the psychological records.  The prosecutor does not see them.  The defense attorney does not see them.  If the judge believes these records are relevant, he turns them over to the parties.

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Shiffra appellate decision

The Court of Appeals decided:

“We conclude that the defendant’s burden should be 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.”

They went on and applied the standard to Mr. Shiffra himself, holding:

“We conclude that Shiffra has met the burden of making a preliminary showing of materiality. He presented ample evidence during the hearing on his discovery motion that Pamela’s psychiatric difficulties might affect both her ability to accurately perceive events and her ability to relate the truth. These difficulties are relevant because they directly affect Pamela’s credibility. They also bear directly on Shiffra’s defense of consent. Shiffra is entitled to an in camera inspection of the records.”

And finally, the Court of Appeals held that the proper remedy for failure to provide the records is to suppress the victim’s testimony.

Shiffra’s modification by Green

A 2002 case modified the decision in Shiffra.  The Supreme Court of Wisconsin in State v. Green, 646 N.W. 2d 298 held:

[The Shiffra] standard requires that the defendant show that the informant’s testimony “may be necessary to a determination of guilt or innocence.” A mere possibility (“may be”) is enough in informant cases. In light of the strong public policy favoring protection of the counseling records, however, we conclude that a slightly higher standard is required before the court must conduct an in camera review of privileged counseling records. For this reason, we conclude, consistent with other state standards, that a defendant must show a “reasonable likelihood” that the records will be necessary to a determination of guilt or innocence.

The Green court’s modification of the standard is certainly simple.  Previously, under Shiffra, the defendant was required to a show a “mere possibility” that the counseling records were necessary to the determination of guilt or innocence.  Under Green, the defendant has to show that there is a “reasonable likelihood” that the counseling records are necessary to determining guilt or innocence.  Finally, in lay terms, it’d be fair to say that the old standard was “there might be relevance” and the new standard is “there will probably be relevance.”

How do we apply this?

Shiffra/Green application is relatively simple.  We must show:

• A specific factual basis demonstrating a reasonable likelihood that the records contain relevant information necessary to a determination of guilt or innocence; and
• Secondly, the information is not merely cumulative to to other evidence available to the defendant.
  • The information is necessary to a determination of guilt or innocence if it tends to create a reasonable doubt that otherwise might not exist.

The defendant bears the burden of proof while filing this motion.  At the same time, “in cases where it is a close call, the circuit court should generally provide an in camera inspection.”  State v. Green, 253 Wis. 2d 356, ¶ 35.

The first step we take is determining whether the motion is appropriate.  We must list a specific, factual reason that the mental health records are relevant to your guilt or innocence.  This requires some basic knowledge on our end.  What do we know is going to be in those records? And how do we know it?  Sometimes the alleged victim indicates to police she’s speaking with a therapist or counselor regarding your case.  If we can pair that with some proof that the victim has mental health issues involving honesty, consistent cheating, obsessive lying, or old sexual assault issues, that might be enough.

Secondly, is the evidence cumulative?  Or, in other words, is this record the only place we can find proof of these issues?  If we’re able to locate it somewhere else, a court is likely to call the information cumulative.

And then what happens?

If the judge grants an in camera inspection, the victim must turn over her mental health records.  If she doesn’t, she cannot testify at trial.  Hopefully that occurs, because in that case there’s a significant chance your case will be dismissed.  At the very least, preventing the victim from testifying could certainly increase your chances at trial.

If the victim does turn those records over, the judge reviews them.  If he finds they are relevant to your guilt or innocence, they’ll be turned over to your attorney.  And finally, if not, the judge will deny the motion and refuse to provide your attorney the records.

Considering a Shiffra/Green motion?

The criminal defense attorneys at Van Severen Law Office dedicate 100% of their practice to criminal defense.  This is especially important as cases become more complex.  While your divorce attorney might be able to stumble through a low-level disorderly conduct, what happens when he’s working on a sexual assault case and fails to notice this motion?  It hurts you.  And it makes it more likely you’ll lose your case.

At Van Severen Law Office our criminal defense lawyers keep up to date with the constantly evolving nature of the law.  If you have an issue involving the production of mental health records, or a Shiffra/Green issue, we can certainly help.

We answer phones 24/7.  Contact us today at (414) 270-0202.  Let’s start fighting your case.