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  • WisBar News
    May 22, 2015

    Statute Allowing Hearsay at Preliminary Hearing Not an Ex Post Facto Law

    Joe Forward
    Legal Writer

    May 22, 2015 – A state appeals court recently ruled that hearsay evidence could be used to determine whether to charge David Hull of sexual assault, despite Hull’s argument that the statute, applied to him, was an unconstitutional ex post facto law.

    David Hull was accused of forcefully raping his friend’s 14-year old daughter in 2011. At that time, most hearsay evidence was not permitted at preliminary hearings, which are used to determine whether there’s probable cause to charge a defendant with a crime.

    Hull was not charged with first-degree sexual assault of a child until 2013. By then, a new law (Wis. Stat. section 970.038) allowed the use of hearsay in preliminary hearings.

    To show probable cause, the state relied on a written statement from the victim, who did not appear at the preliminary hearing. Hull objected to the victim’s written statement, which said her father was passed out drunk in the hotel room where the rape occurred and did not hear her screaming as Hull assaulted her. Hull and the victim’s father attended a taxidermy conference before getting drunk at local bars.

    The victim’s father testified that he did not hear her scream. Hull was trying to exclude hearsay evidence that the victim’s father was drunk and passed out to undermine the victim’s assertion that he did not hear her scream because he was inebriated.

    Hull said the police testimony was unconstitutional because the statute allowing hearsay at preliminary hearings was not in effect on the date of the alleged crime.

    Hull relied on a U.S. Supreme Court case from 1798, which said it would violate the U.S. Constitution’s Ex Post Facto Clause (Art. I, § 9) if a defendant was convicted based on different rules of evidence than the law required when the offense occurred.

    But in State v. Hull, 2014AP365-CR (May 19, 2015), the District III Wisconsin Court of Appeals clarified that section 970.038 was not used to “convict” Hull of the crime.

    “[A] postoffense change in the law making hearsay evidence admissible at a preliminary hearing does not violate a defendant’s ex post facto rights,” wrote Judge Thomas Hruz.

    “The hearing is not held ‘in order to convict the offender,’ but rather to determine if probable cause exists to bind over a defendant for trial, at which the decision to convict occurs,” explained Hruz, noting that ex post facto protections don’t attach here.

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