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State’s Supreme Court upholds law allowing hearsay at prelim hearings

By: Eric Heisig//July 9, 2014//

State’s Supreme Court upholds law allowing hearsay at prelim hearings

By: Eric Heisig//July 9, 2014//

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The Wisconsin Supreme Court upheld a law Wednesday allowing hearsay at preliminary hearings, a move defense attorneys said further weakens a defendant’s constitutional rights.

The court, in a 6-1 decision authored by Justice Ann Walsh Bradley, ruled that criminal defense attorneys arguing against allowing hearsay failed to show the law is unconstitutional, however.

According to the decision, hearsay doesn’t prevent defendants from calling witnesses or defendants’ attorneys from cross-examining prosecutors’ witnesses or challenging the charges’ plausibility.

“Although [the hearsay law] in a particular case may make the task of the defense more difficult,” Bradley wrote, “we are not convinced that the newly enacted statute renders a preliminary hearing a sham, as the petitioners contend. Several procedural and evidentiary safeguards remain unaffected by the passage of the legislation.”

Preliminary hearings have been a hallmark in criminal law for some time, even though they often are waived. Before Republican legislators in 2012 passed a law allowing hearsay testimony at preliminary hearings, the practice was acceptable through a series of exceptions. When passing the law, legislators argued the change would streamline the hearings by eliminating the need for multiple witnesses to testify about every element of a case and spare crime victims from the trauma of testifying.

The challenge to the law stems from two pending cases. In one, Lake Geneva residents Martin and Kathleen O’Brien face 10 counts of child abuse and seven counts of disorderly conduct. The charges stem from allegations from their children, whom they adopted in 2004.

In the other, Kenosha resident Charles Butts faces four counts of sexual assault of a child as a persistent repeater and two counts of child enticement as a persistent repeater.


In both cases, the trial court judges allowed testimony, despite objections from the defendants’ attorneys, from police officers who spoke to some, but not all, of the alleged victims. In the O’Brien case, a judge also denied a defense attorney the ability to subpoena one of the alleged victims, after the attorney conceded he did not know exactly what the child would say.

In appealing both cases, defense attorneys challenged the law allowing hearsay. The Court of Appeals affirmed both lower court judges’ decisions last year.

The Wisconsin Association for Criminal Defense Lawyers and State Public Defender’s office filed a joint brief also opposing the law. They argued it gives defendants no chance short of trial to challenge the legitimacy of a case.

But in upholding the law, the state Supreme Court declined to impose limits on the type of hearsay used in preliminary hearings, explaining that any changes should be made by the Legislature.

“Circuit courts remain the evidentiary gatekeepers,” according to the opinion. “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.”

Terry Rose, of Rose & Rose, Kenosha, who is representing Butts, said “in light of this case there is no need to have a preliminary hearing any longer. It ought to be abolished.”

He said the preliminary hearing was one of the last checks on prosecutors, similar to a grand jury in federal court. Now, he said, such hearings are borderline meaningless.

“I view this as another example of the erosion of the rights of the individual,” Rose said.

According to a statement attributed to the State Public Defender’s office, it was “disappointed” with Wednesday’s case and considering further litigation “to address the extent to which the United States Constitution requires a fair and meaningful process when a state seeks to deprive a person of liberty.”

“For clients who are poor and cannot post bail, today’s decision may mean waiting in jail for months while the prosecutor decides whether to reduce or dismiss the charges in marginal cases,” according to the statement.

Jerome Buting, an attorney with Buting, Williams & Stilling SC, Brookfield, who is representing the O’Briens, also said he is considering filing a writ of certiorari to the U.S. Supreme Court to look at the matter.

“For 150 years, courts have said over and over and over that it’s the judiciary’s responsibility to exercise a check against prosecutorial power,” Buting said of the preliminary hearing. “Otherwise, you have no way to stop someone who is wrongly charged, short of a full-blown trial.”

Chief Justice Shirley Abrahamson, in her dissent, called the majority’s rationale for allowing a witness’s testimony if the attorney doesn’t know what he or she will say “weak.” She said it is common for attorneys not to know exactly what someone will say early on in a case.

According to her opinion, Abrahamson also took issue with the fact that investigators who may have little to do with the case are allowed to testify and speak to something they may have little knowledge about.

“In cases such as the instant cases,” she wrote, “in which the prosecution relies on double or triple hearsay for which the defendants’ cross-examination of the State’s witnesses is meaningless, the plausibility of the State’s case cannot be tested without allowing the defendant to call witnesses – either the hearsay declarant or an individual with personal knowledge of the hearsay statement.”

Ozaukee County District Attorney Adam Gerol, past-president of the Wisconsin District Attorneys Association, said his organization advocated strongly to allow hearsay when the bill was going through the Legislature.

Since then, he said, the practice has done a great courtesy to victims who too often were re-victimized in a process that legally was unnecessary.

Scott Wales, a Milwaukee criminal defense attorney, said he was familiar with the decision but had not read it. He said the court’s ruling was not surprising, however.

Wales said he recently had a case where a police officer testified in a preliminary hearing for a case to which she had no connection. The testimony was solely based on a report she read, he said.

“Within the last two to three years, hearsay was still admissible but you could challenge the admissibility of it, where the appropriate challenge would be recognized by presiding court commissioner or judge,” Wales said. “Now, it’s pretty much, I would not say ‘anything goes,’ but pretty close to it.”

A bill, crafted by the Wisconsin Judicial Council and introduced during the past session, would have rewritten the state’s criminal code and would have replaced preliminary hearings with a motion to dismiss, similar to what exists in civil cases. However, the bill never made it out of committee and a judicial council committee last month voted to recommend pursuing that change when the bill is reintroduced next session.

The Associated Press also contributed to this report.


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