Wisconsin Supreme Court upholds admissibility of hearsay evidence at preliminary hearings

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Andrea Anderson
Wednesday, July 9, 2014

MADISON—The Wisconsin Supreme Court has ruled in a Walworth County case that hearsay evidence will remain admissible at preliminary hearings.

In March, the state Supreme Court heard oral arguments from two lawyers challenging the statute that went into effect in April 2012 and allows courts to rely on hearsay evidence to find probable cause at preliminary hearings.

Before 2012, hearsay was inadmissible at preliminary hearings, unless it met other exceptions.

“We are not convinced that the newly enacted statute renders a preliminary hearing a sham, as the petitioners contend,” the justices wrote in its opinion filed Wednesday morning.

At the center of the debate was a Lake Geneva couple.

Jerome Buting, lawyer for Kathleen and Martin O'Brien, and fellow petitioner Terry Rose, who represents another case cited in the challenge, suggested the court create guidelines or rules that say what type of hearsay is permitted.

Suggested guidelines included barring a “mere reader” to offer evidence by only reading the criminal complaint and requiring testimony or sworn affidavits from witnesses with personal knowledge of the crimes charged.

The justices did not agree with the suggested guidelines and said the place to address such changes lies with the Legislature.

In May 2012, the O'Briens were charged with several felony and misdemeanor counts of abusing their six adopted Russian children. Offenses range from making children stand shoeless outside in the winter to spraying them with pepper spray.

The O'Briens were bound over for trial at a preliminary hearing in Walworth County Court on July 6, 2012. At the hearing, a police officer that interviewed the children testified.

Under the statute adopted three months earlier, a police detective, for example, can testify at a preliminary hearing about what a crime victim said. The victim is not required to testify.

The petitioners argued in their 53-page brief that the court should not allow the use of “unreliable, multiple layers of hearsay” to find probable cause. They argued that a police officer relaying information obtained through interviews is multiple layers of hearsay.

They also argued admitting hearsay evidence at preliminary hearings violates the defendant's right to confront the accuser. The justices, with the exception of Chief Justice Shirley Abrahamson, disagreed with the petitioners, saying the right to cross-examine accusers is fit for a trial, not a preliminary hearing.

In March, Buting said information about the allegations made by the O'Briens' then 17-year-old adopted son is sparse in the criminal complaint. The son, the primary source of information in the complaint, claims to have been hit and hurt by a flashlight.

The defense subpoenaed the 17-year-old to testify at the July 2012 preliminary hearing, but the court nullified the subpoena, according to the court documents.

The defense appealed.

In July 2013, the District 2 Court of Appeals affirmed the decision of Walworth County Judge John Race to disregard the subpoena and restrict the defense from cross-examining the 17-year-old at the preliminary hearing.

The state Supreme Court agreed, saying a preliminary hearing is “not a preliminary trial or a mini-trial” and not the venue where an accuser should be cross-examined.

In her dissent, Abrahamson said it's a defendant's statutory right to cross-examine a witness and that the "plausibility of the hearsay statements could not have been tested without the defendant's ability to call" the accuser or witness to challenge the state's evidence.

The O'Briens remain free on signature bonds. Their next court appearances have not been scheduled.

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