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Bill would expand use of hearsay in preliminary hearings (UPDATE)

A legislative proposal expanding use of hearsay in preliminary hearings could lead to questionable testimony and potentially render felony pre-trial examinations worthless.

On Thursday, Wisconsin legislators introduced Senate Bill 399 to make preliminary hearings more efficient by excusing witnesses from having to physically appear in court before trial and let judges and court commissioners determine probable cause based on hearsay.

Outside of limited circumstances, hearsay is inadmissible in preliminary hearings under current law. Current exceptions include establishing property ownership, a victim’s lack of consent to entry upon or destruction of private property, or certain aspects of identity theft crimes.

While some circumstances allow for hearsay in preliminary hearings, Milwaukee County Circuit Court Commissioner Barry Slagle said the changes proposed in the bill could call into question the reliability of testimony.

“Someone could get on the stand and say he interviewed six people and each person said the guy did it,” he said. “But how do you know you have the right defendant.”

Slagle, who has spent six years in preliminary court, said the proposal would allow for police reports or written testimony to replace witnesses physically appearing in court. That could make it more difficult to weed out bad cases based on a lack of evidence, he said.

The effect would be more cases headed to trial, he added, that perhaps shouldn’t.

“This doesn’t seem like a reliable way to conduct a hearing,” Slagle said. “I think it’s a terrible idea.”

But many defendants already waive their right to a preliminary hearing, said Milwaukee County Circuit Court Judge David Hansher. The proposed change won’t have much of an impact, he said, and could even make the process more efficient.

Hansher, a judge in the Felony Division, said broadening the admissibility of hearsay would save time in bringing in witnesses to testify to the same things outlined in a police report.

“I think it would make things more efficient,” he said. “Witnesses could avoid having to come to court twice and it would eliminate the need for them to appear at preliminary hearings.”

Given that the hearings are only intended to show probable cause to proceed to trial, Milwaukee County Deputy District Attorney Kent Lovern said the proposed change would streamline the current process.

It can be difficult to get witnesses to appear at hearings that may or may not occur, he said, only to offer very limited testimony.

“The hearings are not designed to determine the credibility of a particular witness,” Lovern said. “They are merely to determine whether the state meets its probable cause threshold with regards to filing a felony charge.”

The same threshold could be met without having to call witnesses in, he said.

Hansher said 99 percent of cases are bound over for trial by judges or commissioners now and allowing hearsay won’t lower that percentage.

“I don’t think we’ll see the district attorney’s office taking advantage of this,” he said, “to issue non meritorious charges against defendants.”

But Waukesha criminal defense attorney Anthony Cotton, of Kuchler and Cotton Law Offices, said witnesses in preliminary hearings often help build a record in the case going forward. Absent that first-hand testimony and the ability to challenge the relevance of the statements, he said the hearings would essentially be an arbitrary process.

“It would make preliminary hearings potentially toothless,” Cotton said. “Right now, they are a check on the unbridled charging power the state has and that check is important.”

If the law changes, Milwaukee criminal defense attorney Steve McGaver, of Gimbel, Reilly, Guerin & Brown LLP, said he may be more reluctant to go forward with a preliminary hearing, if there is nothing to gain for his client.

Though the intent of the hearings isn’t to do discovery in a case, he said, any testimony given is locked into the case and could benefit his case.

“The preliminary hearing is designed to be an endeavor whereby the credibility of a witness is tested,” he said, “albeit to a lesser degree than what is required for verdict at trial.

“Taking away the first-person requirement of that test I think circumvents the purpose of this hearing as a gatekeeper to prevent unnecessary or inappropriate charges going forward on the felony level.”

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