The measure would loosen restrictions on evidence in a century-old step in the state’s criminal justice system by eliminating the ban on hearsay evidence at preliminary hearings. That would allow police officers to relay a victim’s story or other information about the case secondhand.
Supporters contend the change would keep crime victims off the witness stand, sparing them from facing their attackers and protecting them from confrontational defense attorneys.
Prosecutors and police also wouldn’t have to prepare multiple witnesses, saving time and money.
Attorney General J.B. Van Hollen wants legislators to go even further and eliminate preliminary hearings, calling them a “money-suck.”
Opponents counter the bill would strip defendants of a crucial layer of protection and erase an important check on prosecutors’ power.
“It’s still important for the integrity of the system to have this step and have this step be meaningful by limiting hearsay evidence,” said Chris Ahmuty, executive director of the American Civil Liberties Union’s Wisconsin chapter. “While we can sympathize with victims who don’t want to come to court more than necessary, eventually they’re going to have to do that.”
Preliminary hearings have been part of Wisconsin’s court procedure since the late 19th century.
Akin to a mini-trial, prosecutors and defense attorneys call witnesses and a judge or court commissioner ultimately determines whether the case is strong enough for a defendant to be tried. The hearings are required in every felony case unless a defendant waives his or her right to one.
Hearsay evidence – testimony that quotes someone who isn’t available to testify – is generally prohibited in preliminary hearings because cross-examination would be much more difficult. The ban means victims must take the stand and tell their story in front of their attackers. Prosecutors, meanwhile, must spend time and money subpoenaing multiple witnesses who can address each element of the crime firsthand, including patrol officers, detectives and crime lab workers.
If hearsay is allowed, a single investigator could relate a victim’s statements, crime lab findings and observations from other officers. Sen. Glenn Grothman, R-West Bend, the bill’s chief sponsor in the Senate, said the change would streamline the hearing process.
An impressive array of law enforcement organizations and victim advocacy groups have lined up behind the measure, including the Wisconsin Chiefs of Police Association, the Association of State Prosecutors and the Wisconsin Coalition Against Sexual Assault.
Ozaukee County District Attorney Adam Gerol, president-elect of the Wisconsin District Attorneys Association, told the Senate judiciary committee last week that the preliminary hearing has devolved over the decades.
The bar for forcing a trial is so low that defense attorneys now use the hearings to bully traumatized victims, turning the proceedings into thinly veiled depositions as they probe for anything that could help their clients, he said.
Julie Schebig, 37, of Madison, told the panel she had to testify about how her estranged husband beat her in the head with a steel mallet in front of their children.
“(Testifying) throws you back into that moment. You have to relive it over and over,” she said. “I cannot urge you enough to pass this bill. This is one way to protect us.”
The bill could save substantial dollars, too, supporters maintain.
Prosecutors would save money by prepping fewer witnesses. Police departments could keep more officers on the street and save tens of thousands of dollars in overtime by sending one officer to a hearing rather than a parade of investigators.
Oshkosh Police Chief Scott Gruel submitted remarks to the committee saying his agency spends nearly $71,000 per year on court overtime.
Van Hollen said legislators should just amend the bill to abolish preliminary hearings.
“This is a big-time suck on prosecutors’ time. This is a money-suck,” the attorney general said.
Rep. Andre Jacque, R-Bellevue, the bill’s chief Assembly sponsor, said he doesn’t want to go that far right now.
“At this point,” Jacque said, “the bill is what we’re hoping to advance and see if the process could be reformed and improved.
Defense attorneys said legislators shouldn’t tinker with the system at all.
Allowing hearsay would render the hearings meaningless and could clog up the legal system, they say. Strong testimony at the hearings can spur plea bargains, eliminating trials and saving time and money, they said.
Some defense attorneys do use the hearings as fishing expeditions, but testifying at them is easier for victims than taking the stand in front of a jury, said Tim Kiefer, a former Dane County prosecutor who now works as a defense lawyer.
“I don’t recall thinking when I was at the DA’s office doing prelims was a waste of time,” he said.
The ACLU’s Ahmuty said the bill would create even broader problems. Permitting hearsay could open the door to police misconduct on the stand and prosecutorial abuse, he said.
“It’s a critical stage in a case,” he said. “Maybe one reason why illegal police conduct and prosecutor abuses are limited is because hearsay is limited … we have a system that calls for high standards.”
The bill’s fate is unclear. Time is running out; the legislative session ends in mid-March and Republican leaders in the Senate and Assembly didn’t immediately return messages Friday seeking comment on the bill’s chances.