State v. Johnson, — N.W.2d —, No. 2011AP2864–CRAC, 2013 WL 3335048 (Wis. July 3, 2013) (per curiam).

Defendant was charged with one count of repeated sexual assault of a child—his stepdaughter.  The trial court granted defendant’s motion for in camera inspection of the child-victim’s privileged therapy records, and the victim refused to consent to the release of the records.  The trial court honored the victim’s assertion of her absolute statutory privilege with respect to her therapy records, and ordered that she would nevertheless be allowed to testify at trial, but with an instruction to the jury informing it of the victim’s refusal and stating that because of the refusal a presumption exists that     the contents of the records would have been helpful to the defense.  Both defendant and the state appealed.   In ruling, the court of appeals found it must adhere to the outcome in an earlier case, State v. Shiffra, in which it affirmed the trial court’s order for in camera inspection of the victim’s psychiatric records, agreed that the victim was not obligated to disclose the records, but concluded that the trial court did not err in exercising its discretion when it suppressed the victim’s testimony as a sanction for her refusal to release the records.  Relying on Shiffra, the court of appeals affirmed the trial court’s order requiring in camera inspection of the victim’s records, reversed the trial court’s order allowing the victim to testify while she is exerting her privilege, and remanded.  On appeal to the Wisconsin Supreme Court, the court in a per curiam opinion reached majority decisions on the three issues before it, but because of varying rationales from the justices the court did not provide analysis.  First, a majority of the court determined that Shiffra should not be overruled; second, that defendant had met his burden in making an initial showing of materiality entitling him to in-camera review of the victim’s privileged records; and third, that the victim was not required to produce the privately-held privileged mental health records for in camera review, and that the victim may testify in the case despite her refusal to waive the privilege.      In a footnote, the court noted that two justices would not affirm the trial court’s decision to give a curative jury instruction regarding any inferences to be taken from the victim’s invocation of her privilege, but this finding did not appear to garner a majority and thus was not a part of the court’s decision.  Accordingly, the court modified and affirmed the decision of the court of appeals, and remanded to the trial court for further proceedings consistent with its opinion.