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Criminal Procedure — preliminary hearings — hearsay

By: WISCONSIN LAW JOURNAL STAFF//July 9, 2014//

Criminal Procedure — preliminary hearings — hearsay

By: WISCONSIN LAW JOURNAL STAFF//July 9, 2014//

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Wisconsin Supreme Court

Criminal

Criminal Procedure — preliminary hearings — hearsay

Wis. Stats. sec. 970.038, which permits hearsay evidence at preliminary examinations, does not violate the constitution.

“We determine that petitioners have failed to meet the heavy burden of showing beyond a reasonable doubt that Wis. Stat. § 970.038 is unconstitutional. The scope of preliminary examinations is limited to determining whether there is probable cause to believe that a defendant has committed a felony. Following precedent, we conclude that there is no constitutional right to confrontation at a preliminary examination. Further, due to the limited scope of preliminary examinations, we determine that the admission of hearsay evidence does not violate petitioners’ rights to compulsory process, effective assistance of counsel, or due process.”

“Finally, we decline petitioners’ invitation to impose new rules limiting the admissibility of hearsay at preliminary examinations. Wisconsin Stat. § 970.038 does not set forth a blanket rule that all hearsay be admitted. Circuit courts remain the evidentiary gatekeepers. They must still consider, on a case-by-case basis, the reliability of the State’s hearsay evidence in determining whether it is admissible and assessing whether the State has made a plausible showing of probable cause. Accordingly, we affirm the decision of the court of appeals.”

Affirmed.

2012AP1769-CR, 2012AP1770-CR & 2012AP1863-CR State v. O’Brien

Bradley, J.

Attorneys: For Appellant: Buting, Jerome F., Brookfield; Stilling, Kathleen B., Brookfield; For Respondent: Kassel, Jeffrey J., Madison; Donohoo, Diane M., Elkhorn

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