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  • WisBar News
    July 10, 2014

    Supreme Court Upholds New Law: Hearsay Okay at Preliminary Hearings

    July 10, 2014 – The Wisconsin Supreme Court has voted 6-1 to uphold a new law that allows the use of hearsay at preliminary examinations in felony criminal cases.

    A person charged with a felony is entitled to a preliminary examination for the purpose of determining whether “there is probable cause to believe a felony has been committed.” Previously, hearsay was not permitted unless an exception applied.

    In 2012, the Wisconsin Legislature changed the law to allow hearsay in preliminary hearings. Hearsay involves statements by one person, as reported by another. Several groups, including the State Public Defender, opposed the change.

    Three criminal defendants – Martin O’Brien, Kathleen O’Brien, and Charles Butts – had argued that allowing hearsay in preliminary examinations violated their constitutional rights, including their right as defendants to confront the witnesses against them.

    But in State v. O’Brien, 2014 WI 54 (July 9, 2014), a majority of the state supreme court justices disagreed, concluding that “there is no constitutional right to confrontation at a preliminary examination.” The majority also rejected challenges on other grounds.

    Martin and Kathleen O’Brien were charged with multiple counts of child abuse. At the preliminary hearing, an officer testified as to the statements of alleged child victims.

    Charles Butts was accused of sexually assaulting a child and child enticement as a persistent repeater. Again, the court was allowed to hear the statements of an alleged victim and the victim’s mother from an officer who testified at the preliminary exam.

    In all three cases, the court found probable cause to proceed with the charges, and determined that the use of hearsay in the preliminary hearings was constitutionally permissible. On appeal, the court of appeals affirmed the lower court’s ruling.

    No Confrontation Right

    A supreme court majority upheld the constitutionality of Wis. Stat. 970.038, the new law that allows hearsay to determine whether there’s probable cause to proceed.

    The majority noted that statutes are presumed constitutional and the challenger bears the burden of proving the statute is unconstitutional beyond a reasonable doubt.

    The majority also noted that that a defendant’s right to preliminary examinations are guaranteed by state statute, not by any constitutional provision, and the U.S. Supreme Court has not ruled that the right to confront witnesses applies to preliminary hearings.

    In addition, previous Wisconsin courts have ruled that the Sixth Amendment’s Confrontation Clause does not apply to preliminary examinations.

    “Our precedent is consistent with that of other jurisdictions which have determined that a defendant’s right to confront accusers is a trial right that does not apply to preliminary examinations,” wrote Justice Ann Walsh Bradley for the 6-1 majority.

    The majority also rejected the claim that defendants have a statutory right to confront witnesses under section 970.03(5), which says the defendant “may cross-examine witnesses against the defendant” in preliminary examination hearings.

    “Contrary to petitioners’ assertions, the statute does not create a confrontation right,” wrote Justice Bradley, noting the statute merely “permits cross-examination of those people actually called to the stand.”

    Statute Does Not Violate Due Process, Compulsory Process

    The majority also rejected the petitioners’ argument that section 970.038 violates their right to call witnesses through the subpoena process, known as compulsory process. The O’Briens’ had tried to subpoena one of the alleged victims who made statements.

    But the majority noted that a defendant may only call witnesses if they show the evidence is “relevant to the probable cause determination,” and the O’Brien’s failed to show that the alleged victim’s testimony would bear on the probable cause inquiry.

    Section 970.038 did not unconstitutional burden the petitioners’ rights to effective assistance of counsel and due process, the majority also concluded.

    The petitioners noted that they have a right to effective assistance of counsel in preliminary hearings, and hearsay undermines the ability of a lawyer to be effective.

    “Contrary to petitioners’ assertions, the admission of hearsay does not eliminate counsel’s ability to provide assistance at a preliminary examination,” Bradley wrote.

    As to due process, the majority noted that “not all procedural rights available in a criminal trial are available at a preliminary examination” and concluded that the use of hearsay at preliminary examinations does not violate a defendant’s due process rights.

    The majority declined an invitation to modify section 970.038 to limit the admissibility of hearsay at preliminary exams, noting the Legislature is the proper forum for that.


    Chief Justice Shirley Abrahamson wrote a lone dissent. She said defendants have a statutory right to test the plausibility of the prosecution’s case under section 970.03(5), and the O’Brien’s should have been allowed to cross-examine their chosen witness.

    The court had quashed their subpoena because the O’Briens failed to show the potential witness’s testimony would be relevant to the probable cause inquiry.

    “When a defendant has no way of knowing exactly what a witness knows or will testify to at the preliminary examination, the law does not place a significant burden on the defendant to demonstrate relevance,” the chief justice wrote.

    “[R]equiring a specific proffer of exactly how a witness will specifically rebut a prosecution claim undermines the preliminary examination’s purpose of putting the State to its burden and undermines the statutory rights accorded by [§ 970.03(5)].”

    Related Articles

    Appeals Court Okays New Law Allowing Hearsay Evidence at Preliminary ExaminationsWisBar News (July 31, 2013).

    Legislature Passes Bill Allowing Hearsay to Overcome Probable Cause StandardWisBar News (March 28, 2012).

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