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Court of Appeals upholds statute making hearsay admissible at preliminary hearings and allowing bindover based solely on hearsay

State v. Martin P. O’BrienState v. Kathleen M. O’Brien, and State v. Charles E. Butts, 2013 WI App 97; consolidated court of appeals decision; case activity: Martin O’Brien; Kathleen O’Brien; Charles Butts.

¶1        The newly enacted Wis. Stat. § 970.038 (2011-12) makes hearsay evidence admissible at a criminal defendant’s preliminary examination and permits the probable cause determination and bindover decision at a preliminary examination to be based “in whole or in part” on hearsay evidence. We accepted these consolidated interlocutory appeals to consider whether these provisions violate a criminal defendant’s constitutional rights to confront adversary witnesses, compel testimony by favorable witnesses, and have the effective assistance of counsel.

¶2        Because the purpose of a preliminary examination is to test the plausibility of the State’s case against the defendant, not to measure the strength of that case nor provide for pretrial discovery, we conclude that Wis. Stat. § 970.038 does not violate a criminal defendant’s constitutional rights. It remains the duty of the trial court to consider the apparent reliability of the State’s evidence at the preliminary examination in determining whether the State has made a plausible showing of probable cause to support binding over the defendant for trial. This determination is to be made on a case-by-case basis, and the hearsay nature of evidence may, in an appropriate case, undermine the plausibility of the State’s case. But admitting hearsay evidence at the preliminary examination presents no blanket constitutional problems. We affirm.

On Point will have more detailed analysis of this important decision soon in a guest post by Marcus Berghahn, who filed an amicus brief in these cases on behalf of the Wisconsin Association of Criminal Defense Lawyers.

UPDATE: Marcus Berghahn’s post is here.

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