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Justices to decide if right to confront applies to preliminary hearings

A consolidated case before the Wisconsin Supreme Court could affect how preliminary hearings are conducted in state.

State v. Charles E. Butts, 2012 AP 1863 (consolidated with State v. Kathleen M. O’Brien and State v. Martin P. O’Brien), targets Wis. Stat. 970.038, (2011-12) which allows a much wider range of hearsay evidence at a preliminary hearing to be taken down in report form and presented to the court by a reader, and used as a basis for probable cause.

Defendant Charles Butts has a trial scheduled on six felony counts, including sexual abuse of a child under 16 years old (persistent offender), child enticement (repeat), sexual abuse of a child under 13 years of age, child enticement, and then two more sexual assault charges on minors.

At his preliminary hearing, Butts was bound over after a police detective read into the record the accounts of two children who claimed Butts assaulted them.

Butts’ attorney brought up the constitutionality of 970.038, which allows hearsay statements to be taken and read as reports in lieu of witness testimony at preliminary hearings.

Kenosha County Judge Anthony Milisauskas upheld the constitutionality of the statute, and further found that it did not violate state or federal due process protections.

The appellate court agreed, and suggested that the defendants did not lose any constitutional protections in part because state and federal law, and case law, never assured any defendant in Wisconsin a right to confront witnesses and test the strength of the state’s case in a preliminary hearing.

In his state Supreme Court brief, counsel for Butts wrote that the statute makes a mockery of the entire purpose of a preliminary hearing. According to the brief, anyone, a stranger from the street, a secretary, could stand and read the hearsay report “and there would be absolutely no real ability to cross examine at all.”

With that leeway, counsel for Butts wondered why the court even needs the reader at all. According to the brief, “The court could just read the report without a preliminary hearing without any lawyers.”

Butts in part relies on the case of Coleman v. Alabama, 399 U.S. 1 (1970). There, the U.S. Supreme Court took great pains to explain the importance of a preliminary hearing to a defendant’s safety against improper prosecutions: “The guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against an erroneous or imprudent prosecution … [where counsel may] expose fatal weaknesses in the state’s case that may lead the magistrate to refuse to bind the accused over.”

Amici briefs presented by the Wisconsin State Public Defender’s Office and the Wisconsin Association of Criminal Lawyers also suggest that a preliminary hearing should not just be a rubber stamp for language in the original complaint, with no further proof necessary to bind over.

Since Wis. Stat. 970.038 was enacted, according to the amici brief, the only witnesses called by the state in some cases have been the readers who essentially read the complaint sections verbally into the record. This removes any real purpose for a preliminary hearing, according to amici counsel.

Therefore, the court shouldn’t allow a defendant to be bound over when the only witness called by the state just reads prepared hearsay from the criminal complaint. Basic concepts of due process are derailed, according to the amici brief, because there is “no opportunity short of trial to challenge the legitimacy of the case.”

The state found no merit in the arguments of any of the consolidated defendants. Both the state of Wisconsin and the U.S. Supreme Court have said in clear language that a defendant does not have a constitutional right of confrontation at a preliminary hearing.

Under the new law, the defendant still has the right to confront witnesses that take the stand against him at a preliminary hearing, according to the state’s brief. Also, the court only relies upon the hearsay evidence as one piece of information that helps it find that probable cause exists.

The state pointed to Wisconsin’s Mitchell v. State, 84 Wis. 2d 325, which in 1978 clearly stated there is “no constitutional right to confront adverse witnesses at a preliminary examination.”

Mitchell v. State was thereafter cited in State v. Padilla, 110 Wis. 2d 414 (Ct. App. 1982), involving a mother who testified at a preliminary hearing about her child’s statements involving abuse; a case where a 4 year old told his mother about a defendant’s allegedly assaultive behavior. In denying the defendant’s motion and allowing the mother to testify, the court found that the defendant did not have a constitutional right of confrontation at the preliminary hearing.

The fact that hearsay evidence is admissible in preliminary hearings is also nothing new, the state continued.

For almost 20 years, Wisconsin courts have allowed hearsay evidence in preliminary hearings under different circumstances, including proving property ownership or lack of consent to enter, according to the state’s brief. Audiovisual recordings of some statements by minors have been permissible hearsay, as well.

Lastly, there is a long line of cases in both Wisconsin and federal law supporting the idea that the right of confrontation is not required for a preliminary hearing, including decisions from Utah, Nevada, Wyoming and California.

Federal courts regularly allow hearsay not only to be admissible, but to be the “basis of probable cause, in whole or in part,” according to the state’s brief.

Counsel for Butts responded that the recent change to allow this new hearsay evidence represents a chilling change in the process. For many people, according to counsel, taking away the right of confrontation from the preliminary hearing may be the only chance they have to really examine the evidence.


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