Case of Lake Geneva couple accused of abusing children cited in Supreme Court case

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Andrea Anderson
Saturday, January 18, 2014

MADISON--The case involving a Lake Geneva couple accused of abusing their adopted children is one of two the Wisconsin Supreme Court will consider in a challenge of a state statute that allows hearsay evidence at preliminary hearings.

Martin and Kathleen O'Brien and their lawyers have filed a brief challenging the statute that went into effect in April 2012. It allows hearsay evidence to find probable cause at a preliminary hearing.

Under the statute, a police detective, for example, is allowed to testify at a preliminary hearing about what a crime victim told him. The victim is not required to testify.

The purpose of a preliminary hearing is to determine if the defendant probably committed a felony.

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

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

At the July 6, 2012, preliminary hearing, testimony was taken from a police officer who had interviewed the children.

The O'Briens argue that their 17-year-old adopted son who ran away and reported the allegations to police is the primary source of information for the police.

The teen's account, later relayed by the police officer, has “significant factual gaps” and the “incidents described were only summaries, not verbatim accounts,” according to the brief.

The defense had subpoenaed the 17-year-old to testify at the preliminary hearing, but the court nullified the subpoena, and the O'Briens were bound over for trial, according to the court documents.

The defense appealed.

In July 2013, the District 2 Court of Appeals affirmed the judge's decision to disregard the subpoena and restrict the defense from cross-examining the 17-year-old at the preliminary hearing.

The O'Briens 53-page brief indicates hearsay evidence should "meet a threshold of reliability" before the court can use it to find probable cause.

The court also should prohibit the use of “unreliable, multiple layers of hearsay” when finding probable cause, according to the brief. The defense argues that a police officer relaying information obtained through interviews is multiple layers of hearsay.

The O'Briens and their attorneys argue that the court:

-- Not allow a “mere reader” to offer evidence by only reading the criminal complaint.

-- Require the testimony or sworn affidavit of a witness with personal knowledge of the alleged crime be provided.

-- Require that an affidavit contain enough underlying facts to judge its reliability.

-- Require hearsay statements and information be provided to the defendant at least five days before a preliminary hearing. 

Marcus Berghahn, filed a non-party brief in February 2013 on behalf of the Wisconsin Association of Criminal Defense Lawyers and Wisconsin Office of the State Public Defenders.

In his brief, he argues the court should only allow witnesses with personal knowledge of witness statements, not just information contained in a criminal complaint.

Oral arguments in the case are scheduled for March 14.

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