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  • March 05, 2012

    Proposed legislation allows hearsay evidence to overcome probable cause standard

    A proposed bill would let circuit court judges rely on hearsay to determine whether a felony charge should stick. In general, prosecutors support the bill, but defense attorneys oppose it. This article explains why.

    Joe Forward

    Proposed legislation allows hearsay evidence to   overcome probable cause standardMarch 7, 2012 – A bill that is winding its way through the Wisconsin Legislature would allow the use of hearsay evidence to determine whether there’s probable cause to charge a suspected felon. The Wisconsin Senate passed the bill yesterday.

    Under Wis. Stat. section 908.01(3), hearsay is a statement, other than one made by a person who is testifying in court, offered in evidence to prove the truth of the matter asserted. Hearsay is generally inadmissible in court proceedings, unless an exception applies.

    Prosecutors, victims’ rights groups, and law enforcement agencies statewide are backing Senate Bill 399 (Assembly Bill 509), introduced by Republican lawmakers earlier this year.

    Attorney General J.B. Van Hollen goes a step further, calling on the Wisconsin Legislature to eliminate preliminary hearings altogether. He says preliminary hearings are too costly and “provide no meaningful protection for defendants.”

    But the Wisconsin State Public Defender, the Wisconsin Association of Criminal Defense Lawyers, and the State Bar of Wisconsin’s Civil Rights and Liberties Section oppose the bill.

    They say the current process is necessary to ensure that criminal defendants are innocent until proven guilty, and to prevent defendants from spending unwarranted time in jail.

    Preliminary hearings

    Any person charged with a felony is entitled to a preliminary examination hearing under state statute.1 A preliminary examination “is a hearing before a court for the purpose of determining if there is probable cause to believe a felony has been committed by the defendant.”2

    A hearing must occur within 10 days of arraignment if a defendant is in custody and bail is set at more than $500, or within 20 days if the defendant has been released from custody.3

    At the preliminary hearing, the defendant may cross-examine witnesses and alleged victims, and call witnesses and alleged victims on his or her own behalf. The hearsay rule prohibits any testimony as to what third parties may have said out of court.4

    If the court finds that a felony was probably committed, the case is bound over for trial. If the court finds that only a misdemeanor was probably committed, the case must proceed as a misdemeanor. If plausibility can’t be overcome, the defendant is released.5

    Defendants can waive preliminary examinations, and a majority of them are waived, according to those who testified at committee hearings before Wisconsin lawmakers in February.

    The opponents

    Allowing hearsay defeats the purpose of preliminary hearings and does not ensure the proper check on prosecutorial power, says criminal defense lawyer Gerald Mowris. Even though most preliminary hearings are waived, the ones that aren’t serve a valuable purpose, he says.

    “The ones that are held are held for a reason. Oftentimes, the reason is there’s a question about what happened,” said Mowris, of Pellino & Mowris S.C., Madison, who testified in February to oppose the bill on behalf of the Wisconsin Association of Criminal Defense Lawyers.

    “It’s very important that there be some review of a prosecutorial decision to charge someone with a felony prior to a trial,” Mowris said, noting that some counties hold status conferences to determine whether a preliminary hearing will be held, eliminating last-minute waivers.

    Mowris says if hearsay is allowed in preliminary examinations, those hearings may as well be eliminated altogether. “I think allowing wide open hearsay at preliminary hearings would make the hearing a complete and total formality and lose pretty much any value at all,” he said.

    Attorney Larry Dupuis, a member of the State Bar’s Civil Rights and Liberties (CRL) Section Board, says preliminary hearings are particularly important because accused felons are often jailed while resolution of the case is pending, an ultimate loss of liberty.

    “Preliminary hearings determine whether someone is going to be held in jail pending trial, and how high bail will be set. That can really impact the ultimate outcome of the case, and we shouldn’t be relying on evidence the defense has no opportunity to test,” said Dupuis, who works for the American Civil Liberties Union in Milwaukee.

    Kelli Thompson, head of the State Public Defender, also says preliminary hearings are valuable to ensure a fair process for criminal defendants who are often sitting in jail.

    “If hearsay testimony was allowed, we would hear only from the police officer and not from the alleged victim. My clients will sit in custody waiting for that opportunity to be heard,” she told the Assembly committee. “To allow [hearsay] to stand in place of what might be said by an alleged victim or an eye witness … I think that would work to the detriment of the system.”

    The proponents

    Prosecutors, law enforcement agencies, and victims’ rights groups statewide argue that alleged victims, especially victims of abuse or sexual crimes, should not be required to testify at preliminary hearings. They also say preliminary hearings are too costly and inefficient.

    Passing the bill would be “the greatest gift the Legislature could do for victims’ rights in Wisconsin,” attorney Adam Gerol told lawmakers in February. Gerol is the Ozaukee County District Attorney and president-elect of the Wisconsin Association of District Attorneys.

    Gerol says defendants have a right to jury trial, and a right to confront the witnesses against them. But allowing hearsay at preliminary hearings would not infringe on those rights. “This bill would in no way offend any element of the Wisconsin or U.S. constitutions,” he said.

    Andrew Naze, a Kewaunee County prosecutor, says police officers who take good statements should be able to testify and free victims from testifying multiple times. He also says the bill will prevent defendants from using preliminary hearings to scare and intimidate victims.

    “If the victim in the beginning is already feeling frightened, intimidated, and scared, getting to the end [of the case] can be very hard to do,” Naze told lawmakers, noting a preliminary hearing can occur within 10 days of the alleged crime if the defendant is in custody.

    Similarly, the Wisconsin coalitions against domestic violence and sexual assault don’t want alleged victims to be forced to rehash traumatic events so soon after the alleged crime.

    Attorney General J.B. Van Hollen wants to eliminate preliminary hearings. He said more than 35,000 felony cases can be charged in a single year, requiring subpoenas of victims, witnesses, and law enforcement agents at costs that cannot be recouped if the hearing is waived.

    “I have witnessed firsthand how these hearings delay justice for crime victims, make court calendars inefficient and take law enforcement officers off the street – often in futility, because a hearing doesn’t happen,” Van Hollen wrote in a memo to lawmakers considering the bill.

    Current positioning

    SB 399 unanimously (5-0) passed the Senate Committee on Judiciary, Utilities, Commerce, and Government Operations, without amendments. AB 509 passed the Assembly Committee on Criminal Justice and Corrections by a vote of 5-4, also without amendments. The Wisconsin Senate passed SB 399 yesterday. Now, the Assembly is expected to consider the bill.

    By Joe Forward, Legal Writer, State Bar of Wisconsin


    1 Wis. Stat. § 970.01(2); See also State ex rel. Welch v. Waukesha Co. Cir. Court, 52 Wis. 2d 221, 189 N.W.2d 417 (1971).

    2 Wis. Stat. § 970.03.

    3 Id.

    4 Id.

    5 Id.

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