The recently enacted statute allowing the admission of hearsay evidence at preliminary hearings is not an unconstitutional ex post facto law because it affects only the evidence that may be admitted at the preliminary hearing and does not alter the quantum or nature of evidence necessary to convict the defendant. In addition, the court commissioner properly refused to allow Hull to call the alleged victim to testify at the preliminary hearing because the anticipated testimony was not relevant to the probable cause inquiry.
The alleged child sexual assault in this case occurred before enactment of § 970.038, but Hull wasn’t charged till after the statute took effect. At the preliminary hearing the state presented the child’s hearsay statement through a detective. (¶¶3-13). Besides making constitutional challenges that have since been rejected in State v. O’Brien, 2014 WI 54, 354 Wis. 2d 753, 850 N.W.2d 8, Hull argued that as applied to him, the statute falls into the fourth category of ex post facto laws identified in the venerable case of Calder v. Bull, 3 U.S. 386, 390 (1798). That category covers a law “that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.”
The court of appeals holds that ex post facto protections don’t apply to § 970.038 because preliminary hearings are not held “in order to convict the offender,” but only to determine if probable cause exists to bind over a defendant for trial, at which the decision whether to convict occurs:
¶24 …. Although preliminary proceedings are a critical stage in the criminal process and are held for the protection of the defendant, O’Brien, 354 Wis. 2d 753, ¶¶21, 23, “[t]he fact that Wisconsin has preliminary examinations at all exceeds the requirements” of the federal constitution, id., ¶25. There is no constitutional right to a preliminary hearing. State v. Schaefer, 2008 WI 25, ¶32, 308 Wis. 2d 279, 746 N.W.2d 457. ….
¶25 A conviction does not necessarily flow from a finding of probable cause at the preliminary examination. The preliminary examination’s sole purpose is to “determine whether the defendant should be subjected to criminal prosecution and further deprived of his liberty.” [State v.] Dunn, 121 Wis. 2d [389,] 394-95[, 359 N.W.2d 151 (1984)]. The defendant may be bound over for trial “if the evidence adduced at a preliminary examination establishes to a reasonable probability that a crime has been committed and that the defendant probably committed it.” State ex rel. Huser v. Rasmussen, 84 Wis. 2d 600, 605, 267 N.W.2d 285 (1978). Unlike a criminal trial, which requires guilt to be proven by a reasonable doubt, the preliminary examination merely involves consideration of “the practical and nontechnical probabilities of everyday life in determining whether there was a substantial basis for bringing the prosecution ….” Id. at 605-06.
¶27 While it is certainly true the State must first successfully bind over a defendant in order to later attempt to secure a conviction, that fact is of no moment to our analysis. This basic, procedural reality does nothing to make “less, or different, testimony, than the law required at the time of the commission of the offence, [available] in order to convict the offender.” Calder, 3 U.S. at 390 (emphasis added). …. What is material is that Wis. Stat. § 790.038 [sic] did not alter either the nature or the quantum of evidence necessary at trial to convict Hull of the charged offenses. All evidentiary rules governing trials in effect before § 790.038’s [sic] enactment remained so afterwards.
Hull also argued that before making a probable cause determination, the court commissioner should have allowed him to call the victim as a witness at the preliminary hearing. While a defendant does have a right to present evidence at a prelim, Schaefer, 308 Wis. 2d 279, ¶35, that right is not unlimited. To overcome the state’s motion to quash Hull’s subpoena for the victim, Hull had to show the evidence from the victim would be relevant to the probable cause determination, O’Brien, 354 Wis. 2d 753, ¶37. Between the narrow purview of the prelim (plausibility, not credibility) and the fact Hull couldn’t make an offer of proof about what she would say (his investigator wasn’t allowed to interview the victim), the court holds the court commissioner properly terminated the prelim without hearing from the victim. (¶¶29-39).
Hull was able to test the plausibility of the state’s evidence by presenting the testimony of the victim’s father, who was in the same room and allegedly slept through the assault; but he was bound over even in the face of his testimony. (¶¶14-16, 35).