¶ 51. (dissenting). I would affirm the decision of the court of appeals. I dissent for two reasons. First, I agree with the court of appeals that the case should be remanded to the circuit court so that Wis. Stat. § 905.10(3)(b) can be properly applied. Second, I am concerned that the majority opinion leaves the correct interpretation of § 905.10(3)(b) in doubt.
HH
¶ 52. It is undisputed that the circuit court failed to follow the in camera procedure mandated by Wis. Stat. § 905.10(3)(b) and thus did not make the requisite *239determination of whether the confidential informants' testimony was "necessary" to the defendant's defense. I dissent because I do not believe that this error is subject to harmless error analysis.1
¶ 53. The issue in this case is not whether, under harmless error analysis, it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.2 Rather, the issue is whether the circuit court's failure to follow the procedure in Wis. Stat. § 905.10(3)(b) led to the exclusion of testimony that might have been "necessary" to the defendant's defense.
¶ 54. Because I believe that the harmfulness of the error cannot be assessed without a proper determination as to whether the informants' testimony is "necessary" to the defendant, I would affirm the remedy detailed by the court of appeals.3 The five convictions relating to the drug buys made in the presence of the *240confidential informants should be conditionally reversed and the matter should be remanded to the circuit court for a new in camera determination conducted in accordance with the provisions of Wis. Stat. § 905.10(3)(b). If the circuit court determines that the informants' testimony is not necessary to the defense, the convictions may be reinstated. If, however, the circuit court determines that the informants' testimony is necessary, then the privilege of confidentiality must give way to the defendant's right to present a defense, and the defendant is entitled to a new trial on these five counts.
¶ 55. The issue presented in this case is similar to one faced by this court in State v. Rizzo, 2002 WI 20, 250 Wis. 2d 407, 640 N.W.2d 93. Under Wisconsin law, "fundamental fairness" requires that a defendant in a sexual assault case be entitled to a pretrial psychological examination of the alleged victim when the State seeks to put on Jensen evidence — evidence that the alleged victim is demonstrating behaviors consistent with the behaviors of other such victims.4 Absent this opportunity, the defendant is not playing on a level field and does not have an adequate chance to counter the State's evidence.5
¶ 56. This right, however, must be balanced against the privacy interests of the victim. Consequently, circuit courts have been directed to consider *241the seven Maday factors6 to determine if the defendant in a given case "has a compelling need or reason" for the examination, thereby warranting an intrusion into the privacy interests of the victim.7
¶ 57. In Rizzo, this court held that the proper remedy for a defendant who was convicted at trial after he was erroneously denied the opportunity to have a pretrial determination of his right to conduct an independent psychological examination of the sexual assault victim was to remand the matter to the circuit court with directions to conduct the appropriate pretrial determination.
Only if Rizzo should have been granted his request for a pretrial psychological examination did the State's introduction of Jensen evidence violate his rights to due process and a fair trial. Because, as we have already noted, the circuit court never had the opportunity to exercise its discretion in applying the Maday factors, we do not know whether Rizzo would have been able to survive a determination under Maday8
¶ 58. The remedy in the case at hand should be no different. It is true that Rizzo is not on all fours with the case at hand. The circuit court in Rizzo made no determination as to whether the defendant was entitled to a pretrial psychological examination and thus there was no record from which an appellate court could assess harmlessness. In the present case, by contrast, the circuit court conducted a pretrial hearing and created a record. This distinction, however, is irrelevant *242since the precise issue in this case is the sufficiency of that record in determining whether the informants' testimony is "necessary" to the defendant.
¶ 59. The circuit court never properly applied Wis. Stat. § 905.10(3)(b) to determine whether the defendant was entitled to know the identity and thereby present the testimony of the confidential informants in this case. The circuit court made its determination to deny the defendant's request based on three documents — two affidavits from which it "gained little information" and required "further clarification" and an inadmissible, unsworn, ex parte memo from a police officer. We simply do not know, therefore, whether the defendant would have prevailed if the proper procedure had been followed and adequate information had been considered by the circuit court.
¶ 60. The majority opinion concludes, "[I]n this case, the balance between the defendant's rights and the right of the state to protect its informants was adequately provided for by the procedures used at this defendant's trial."9 The majority points out that the unsworn document submitted by Detective Bloedorn was admitted into evidence, and that the defendant therefore had an opportunity to cross-examine police officers about their confusion concerning the identity of the defendant, as evidence of the "procedures" at trial that "adequately" balanced the competing interests in this case.
¶ 61. I fail to understand how this evidence sufficiently compensates for the improper pretrial determination. In order for the procedures used during trial to permit an appellate court to determine that the defendant's rights were adequately balanced against *243the state's right to protect its informants, and thus that the underlying error was harmless, sufficient information must have been elicited at trial to make a determination that the testimony of the confidential informants was not necessary to the defendant's defense.
¶ 62. In State v. Ballos, 230 Wis. 2d 495, 602 N.W.2d 117 (Ct. App. 1999), for example, the defendant in an arson case made a pretrial request for an in camera inspection of the mental health records of one of the state's witnesses. The witness was an accomplice who had struck a deal with the state in exchange for his testimony against the defendant. The defendant argued that the records would demonstrate that the witness was obsessed with building bombs and was mentally unstable, and that being able to present this evidence was necessary to his defense. The circuit court denied the request.
¶ 63. On appeal, the court of appeals concluded that the circuit court's decision was erroneous. However, it went on to hold that the error was harmless because the jury learned during the witness's testimony at trial that he had received mental health counseling prior to the fire; that he had received medication, including anti-depressants; and that he had admitted an interest in blowing things up.
¶ 64. Here, in contrast, the information elicited during the defendant's trial does not provide any similar substitute for the information that should have been considered during the pretrial in camera investigation. The confidential informants' testimony in this case is "necessary" if it could have " 'created in the minds of the jurors a reasonable doubt' regarding a defendant's *244guilt,"10 and nothing testified to at trial assists in making this determination.
¶ 65. The unsworn memo attests only to the officers' confusion about the identity of the defendant. It says very little about the knowledge that the confidential informants had or the testimony they could offer at trial. The single paragraph in Detective Bloedorn's memo discussing the confidential informants reads as follows:
Neither of the Confidential Informants were [sic] ever aware of the identity of "Shorty." The Cl's introduced two different undercover officers and were acting independently of each other. Neither of the Cl's were aware of each others activities. "When I obtained the affidavits for the Court, I at that time did show a photo of Sing Chen to both Cl's. Both Cl's stated that the photo was that of "Shorty."
In short, it does not provide any further insight into the confidential informants' knowledge of the defendant's identity. It explains that Detective Bloedorn had shown them a photo of the defendant and that both stated that the photo was that of Shorty, but this information was already included in the original affidavits that the circuit court found unenlightening.
¶ 66. The factual dispute underlying this case is whether the defendant was the person with whom the police officers and the confidential informants engaged in drug transactions on five separate occasions. The police officers initially believed that the person from whom they bought drugs was a man of Asian descent, in his 20s, named Pao Moua. They later testified that the *245seller was in fact the defendant, a man of Asian descent, in his 30s, named Sing Chen.
¶ 67. While the defendant had the opportunity at trial to cross-examine the police officers about this mistake and introduce evidence attesting to their confusion, he never had the opportunity to present or test the testimony of the other witnesses to the transactions —the confidential informants.
¶ 68. While the defendant's right to cross-examine is not absolute, it has been denied in the present case without the aid of information that illuminates the potential scope or content of the confidential informants' testimony and thus without adequate consideration of his interests in a fair trial. Neither the circuit court, nor the jury, nor this court has had a chance to consider evidence of the confidential informants' testimony that did not require "further clarification," and yet this court stands firm in its conclusion that "there is no possibility that the informants' testimony would have produced a reasonable doubt in this case."11
¶ 69. In addition, if the circuit court were to find on remand that the testimony of the confidential informants was necessary to the defendant's defense, this court cannot conclude that the failure to provide it was nonetheless harmless. The same argument was raised and rejected in Rizzo:
[A] determination that the psychological examination was necessary to level the playing field seems inconsistent with a determination that the absence of such an examination was harmless error. A decision by the circuit court that a defendant is entitled to a pretrial psychological examination of the victim is tantamount *246to a determination that fundamental fairness requires that the defendant be given the opportunity to present relevant evidence to counter the State's Jensen evidence. Accordingly, we do not apply a harmless error analysis.12
¶ 70. The Rizzo analysis of remedy squarely fits the situation at hand. As the majority opinion explains, the balancing of interests required under Wis. Stat. § 905.10(3)(b) also has its roots in the idea of "fundamental fairness."13 The statute is specifically designed to incorporate two competing interests: the public's interest in effective law enforcement, embodied in the confidential informant's privilege, and the defendant's right to present a defense and have a fair trial.14 In order to properly balance these interests, the circuit court is required to conduct a pretrial in camera examination to determine if the requested privileged information is "necessary" to the defendant's defense and therefore must be disclosed to the defendant.
¶ 71. As was true in Rizzo, a determination that the informants' testimony is necessary to the defendant in this case is inconsistent with a determination that the absence of the testimony was harmless error. A decision by the circuit court that the defendant in this case is entitled to the identity and thus the testimony of the confidential informants is tantamount to a determination that fundamental fairness requires that the defendant be given the opportunity to present relevant evidence to counter the State's evidence. Thus, the harmless error analysis does not apply.
*247I — I HH
¶ 72. I am concerned that the majority opinion leaves the correct interpretation of § 905.10(3)(b) in doubt.
¶ 73. The majority opinion is correct to point out that Wisconsin law, like federal law, holds that neither a confidential informant's privilege nor a defendant's right to confront a confidential informant is absolute, and that determining when the informant's privilege must give way to a defendant's right to a fair trial requires a case-by-case balancing of the public's interest in effective law enforcement against an individual's constitutional rights.15
¶ 74. The concurring/majority opinion in Outlaw, however, expressly rejected the test established by the United States Supreme Court in Roviaro for making this proper balance. The Outlaw concurring/majority opinion stated bluntly that although federal case law is relevant and helpful in interpreting Wis. Stat. § 905.10(3)(b), it is not controlling. "The Wisconsin [informer's privilege] rule is distinctly a product of Wisconsin Supreme Court rule making."16
¶ 75. More specifically, the Outlaw concurring/majority opinion concluded that Wis. Stat. § 905.10(3)(b) clearly specifies that a confidential informant's privilege will give way only where his testimony is "necessary" to a fair trial. An informer's testimony is necessary if it "could have created in the minds of the jurors a reasonable doubt regarding a *248defendant's guilt."17 In contrast, the Roviaro decision holds that "where the disclosure of an informer's identity ... is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way."18 As Justice Callow wrote in Outlaw criticizing the lead opinion, "I do not believe that relevant and admissible in respect to an issue material to the accused's defense is the equivalent of reasonably necessary to a fair determination of guilt or innocence."19
¶ 76. The defendant argues that the test announced in the Outlaw concurrence/majority opinion for determining when a confidential informant's privilege must give way to a defendant's right to a fair trial is too strict. He urges this court to adopt the more lenient Roviaro test, citing to analogous tests in Pennsylvania v. Ritchie, 480 U.S. 39 (1987), State v. Richard A.P., 223 Wis. 2d 777, 589 N.W.2d 674 (Ct. App. 1998), and State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993). The majority opinion's response to the defendant is to conflate Roviaro and Outlaw, leaving the reader to wonder whether the more lenient federal Roviaro test or the stricter Outlaw concurrence/majority test is controlling law in Wisconsin.
¶ 77. For the foregoing reasons, I dissent.
¶ 78. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.
Majority op., ¶¶ 35, 41-42 (citing Wisconsin's harmless error test as that stated in Chapman v. California, 386 U.S. 18, 24 (1967)).
See majority op., ¶¶ 35, 41-42.
The majority opinion brings an inconsistency in our case law to light. The majority cites State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, for the proposition that a defendant bears the burden of proving that a circuit court's error in denying him an in camera review of privileged materials was not harmless, contrary to the general rule that the beneficiary of the error bears the burden of proving harmlessness. Majority op., ¶ 38. The majority opinion then correctly holds that in this case, pursuant to State v. Harvey, 2002 WI 93, ¶¶ 40-41, 254 Wis. 2d 442, 647 N.W.2d 189, the burden of proving that a circuit court's error in conducting an in camera review of confidential information is harmless is on the beneficiary of that error. Majority op., ¶ 40. I question why the burden is placed on different parties in these two situations.
State v. Rizzo, 2002 WI 20, ¶ 14, 250 Wis. 2d 407, 640 N.W.2d 93 (citing State v. Maday, 179 Wis. 2d 346, 357, 507 N.W.2d 365 (Ct. App. 1993)).
"Jensen evidence" refers to this court's decision in State v. Jensen, 147 Wis. 2d 240, 432 N.W.2d 913 (1988).
Maday, 179 Wis. 2d at 357.
The "Maday factors" are so named because they were first detailed in State v. Maday, 179 Wis. 2d 346, 507 N.W.2d 365 (Ct. App. 1993).
Maday, 179 Wis. 2d at 360.
Rizzo, 250 Wis. 2d 407, ¶ 44.
Majority op., ¶ 30.
State v. Outlaw, 108 Wis. 2d 112, 140, 321 N.W.2d 145 (1982) (Callow, J., concurring).
Majority op., ¶ 48.
Rizzo, 250 Wis. 2d 407, ¶ 47 (citation omitted).
Majority op., ¶ 19.
Majority op., ¶ 20.
See Roviaro v. United States, 353 U.S. 53, 62 (1957); Outlaw, 108 Wis. 2d at 141 (Callow, J., concurring).
Outlaw, 108 Wis. 2d at 139 (Callow, J., concurring) (quoting Outlaw majority op.).
Id. at 140 (Callow, J., concurring) (citations omitted).
Roviaro, 353 U.S. at 60-61 (emphasis added).
Outlaw, 108 Wis. 2d at 139 (Callow, J., concurring).