Wisconsin Supreme Court hears Lake Geneva case in hearsay evidence debate

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Andrea Anderson
Saturday, March 15, 2014

MADISON — A Lake Geneva couple is at the center of a debate the Wisconsin Supreme Court is considering about the admissibility of hearsay evidence at preliminary hearings.

At oral arguments Friday afternoon at the state Capitol, Jerome Buting, lawyer for Martin and Kathleen O'Brien, challenged the statute that went into effect in April 2012. The statute allows hearsay evidence to find probable cause at preliminary hearings.

Buting and fellow petitioner Terry Rose, who represents another case cited in the challenge, suggests the court implement "some sort of guidelines or rules to tell the courts what type of hearsay is permitted or not."

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

The O'Briens were bound over for trial after a July 6, 2012, preliminary hearing in Walworth Count Court.  At the hearing, testimony was taken from a police officer who had interviewed the children.

The defense argued the hearsay evidence should meet a certain level of reliability before the court can use it to find probable cause.

Under the statute, a police detective, for example, is allowed to testify at a preliminary hearing about what a crime victim told him or her. 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.

According to a brief filed by the O'Briens and the attorneys challenging the statute, they 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.

Buting and Jeffrey Kassel, assistant attorney general, repeatedly cited a criminal complaint during oral arguments.

Buting said the criminal complaint is "very sparse" with information pertaining to the allegations made by a then 17-year-old adopted son who claims to have been hit and hurt by a flashlight.

The O'Briens argue their adopted son ran away and reported the allegations to police and is the primary source of information for the police.

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 statute is worded so broadly it's opened the door for meaningless exercise,” Buting said “unless this court provides some guidelines."

Kassel argued against changing the statute, saying the credibility or reliability of hearsay should be determined by judges on a court-by-court basis.

“While it makes hearsay admissible, it says court may base it's decision on that,” Kassel said.

In the 53-page brief filed the O'Briens and the attorneys challenging the statute, it states the court should not allow the use of “unreliable, multiple layers of hearsay” when finding probable cause. The defense argues that a police officer relaying information obtained through interviews is multiple layers of hearsay.

It's not clear when the Supreme Court will issue a decision in the case.

The O'Briens remain free on signature bonds.

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