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    Appeals Court Okays New Law Allowing Hearsay Evidence at Preliminary Examinations

    July 31, 2013 – A state appeals court has rejected a facial constitutional challenge to a new law, passed in 2012, that allows the use of hearsay evidence in preliminary examinations to determine whether there’s probable cause to charge a suspected felon.

    A person charged with a felony is entitled to a preliminary examination for the purpose of determining “if there is probable cause to believe a felony has been committed.” Defendants may cross-examine witnesses and call their own witnesses.

    Previously, hearsay evidence was prohibited, unless it fell within a statutory exception that allowed it. But the Wisconsin Legislature passed a law allowing hearsay evidence, second-hand statements made out-of-court, to be used in preliminary examinations.

    Three defendants appealed their convictions on the grounds that allowing such hearsay evidence violates a criminal defendant’s right to confront witnesses against them.

    One defendant, charged with child sexual assault, challenged testimony by a police detective who repeated out-of-court statements made by alleged victims. The detective admitted that he was not present when one victim made her statements to police.

    The other cases involved the parents of five adopted children. The children told police that their parents, Martin and Kathleen O’Brien, abused them since adoption. At the preliminary examination, a police investigator testified about the victims’ statements.

    The circuit courts allowed the hearsay evidence under the new law, Wis. Stat. section 970.038. And in State v. O’Brien, 2012AP1769 (July 17, 2013), a three-judge court of appeals panel ruled that allowing it “presents no blanket constitutional problems.”

    “It matters not whether this rule marks a great change from prior practice in Wisconsin criminal cases, nor whether the change will prove to be an effective or wise one,” wrote Chief Appeals Court Judge Richard Brown, stating the law is constitutionally sound.

    The court explained that a right to confront witnesses triggers at trial, and has “limited application” in pretrial proceedings not germane to the issue of guilt or innocence.

    “Because the purpose of a preliminary examination is to test the plausibility of the State’s case against the defendant, not to measure the strength of that case nor provide for pretrial discovery, we conclude that Wis. Stat. § 970.038 does not violate a criminal defendant’s constitutional rights,” Judge Brown wrote.

    The court also held that allowing hearsay evidence at preliminary examinations does not violate a defendant’s right to a fair trial by due process, explaining that the U.S. Constitution requires courts to make some “probable cause to detain” determination through a process that varies by jurisdiction but has a limited purpose.

    “The question of the defendant’s ultimate guilt or innocence is not in dispute at the preliminary examination,” wrote Judge Brown, noting the exam’s purpose is to assess whether the defendant could have committed the crime, not whether he or she is guilty.

    “In view of this limited purpose, we conclude that admission of and reliance upon hearsay evidence … does not jeopardize the defendant’s fair trial rights,” Brown wrote.

    The appeals court also ruled that section 970.038 does not unlawfully limit a defendant’s right to call and cross-examine witnesses through compulsory process, as argued by defendants, but noted that a subpoena may be quashed where a witness is not called to show or refute the state’s plausible theory for prosecution.

    Finally, the court rejected the defendants’ argument that section 970.038 violates a right to assistance of counsel in criminal cases because defense counsel cannot challenge the competency or reliability of the underlying evidence at preliminary hearings.

    “To demand that counsel must be permitted to challenge the competency and reliability of the underlying evidence is a fundamental misunderstanding of the purpose of the preliminary hearing,” wrote Brown, noting that counsel can still challenge plausibility.

    Related Article

    Legislature Passes Bill Allowing Hearsay to Overcome Probable Cause Standard – Wisbar InsideTrack, March 28, 2012 (login required).



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