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SCOW rejects all constitutional challenges to new preliminary hearing hearsay rule, and rejects challenge to limitations on defense right to call and cross-examine witnesses at preliminary hearings

 State v. O’Brien, et al., 2014 WI 54, 7/9/14, affirming published court of appeals decision; majority opinion by Justice Bradley; case activity

The defendants challenged the constitutionality of recently enacted WI Stat. s. 970.038, which permits the use of hearsay at preliminary hearings, and allows a court to base a finding – that probable cause exists to hold a defendant for trial on a felony charge – entirely on hearsay. The Wisconsin Supreme Court cursorily rejected arguments that the new statute, as applied, violated their rights to confrontation, compulsory process, effective assistance of counsel and due process. Special Guest Marla Stephens, Director of the SPD’s Appellate Division, authored this post about the decision.

Justice Bradley wrote for the 6-1 majority:

¶3 We determine that petitioners have failed to meet the heavy burden of showing beyond a reasonable doubt that Wis. Stat. § 970.038 is unconstitutional. The scope of preliminary examinations is limited to determining whether there is probable cause to believe that a defendant has committed a felony. Following precedent, we conclude that there is no constitutional right to confrontation at a preliminary examination. Further, due to the limited scope of preliminary examinations, we determine that the admission of hearsay evidence does not violate petitioners’ rights to compulsory process, effective assistance of counsel, or due process.

In a brief overview of preliminary hearings, the court explained:

 ¶25 The fact that Wisconsin has preliminary examinations at all exceeds the requirements of the Fourth Amendment. The United States Supreme Court has concluded that although the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to the extended restraint on liberty, adversary proceedings are not necessary. Gerstein v. Pugh, 420 U.S. 103, 120 (1975). Due to the limited scope of probable cause determinations, informal proceedings are sufficient. Id.

 ¶26 The Gerstein Court further opined that the probable cause determination may be made “on hearsay and written testimony.” Id. It explained that the value of confrontation and cross-examination “would be too slight to justify holding, as a matter of constitutional principle, that these formalities and safeguards designed for trial must also be employed in making the Fourth Amendment determination of probable cause.” Id. at 122.

 ¶27 With this background, we turn to petitioners’ arguments.


In all three cases, the state presented police witnesses who had no personal knowledge of the events alleged in the criminal complaints. ¶¶ 6-14. Amici briefing by the Wisconsin Association of Criminal Defense Lawyers and the Office of the State Public Defender detailed numerous other examples from throughout the state of preliminary hearings that consisted solely of the testimony of police officer witnesses who simply read from police reports or the criminal complaint and who had no personal knowledge of the alleged events.

The court relied upon Gerstein v. Pugh to reject the confrontation challenge, but did not address why the level of process held sufficient under the Fourth Amendment to support a finding of probable cause for a warrantless arrest (what is now known as a Riverside finding) in Gerstein was also sufficient to support a determination that “there is a believable or plausible account of the defendant’s commission of a felony” at an evidentiary preliminary hearing in these cases. ¶24.

Nor did it explain what the Sixth Amendment might require. Instead, it observed that the question – whether the constitutional right to confrontation applied to preliminary hearings – was an open one in the Supreme Court of the United States, and one already decided adversely to these defendants in the appellate courts of this state, and some others. ¶¶ 29-31.

This, of course, opens the door to further argument in the federal courts as to what, exactly, the Sixth Amendment requires. Certainly cases like these, that are based not on police investigation, but rather on the accusations of alleged victims, are the cases in which an early examination of the accuser is necessary in order to “protect [] defendants and the public from unwarranted prosecution,” and to function “as a check on prosecutorial discretion.” ¶ 21.

Right to call witnesses pursuant to compulsory process clause

All of the defendants attempted to call a complaining witness to the stand during their respective preliminary hearings, and all of their subpoenas were quashed.

The supreme court determined that the right to “call witnesses on the defendant’s own behalf,” contained in Wis. Stat. s. 970.03(5), is not violated by s. 970.038, because “it does not address or alter the provisions in …970.03(5) authorizing the defendants to call witnesses, nor does it prevent them from doing so.” ¶¶ 34-35. Rather, the right to call witnesses is properly limited to evidence that is relevant to probable cause determination. ¶ 37.

Because the defendants were unable to state exactly what the witness would say that would be relevant to probable cause, the proffered testimony was properly excluded. O’Brien’s counsel candidly stated “I don’t really know” what the state’s witness will say.¶ 38.

This is where the dissenting opinion from Chief Justice Abrahamson weighs in. Abrahamson observes that defense counsel’s proffer is understandably limited in these circumstances.

 ¶ 80…Defense counsel rarely knows at the preliminary examination exactly what a witness (who will testify for the State at trial) will say before the witness takes the stand. When a defendant has no way of knowing exactly what a witness knows or will testify to at the preliminary examination, the law does not place a significant burden on the defendant to demonstrate relevance. Tools of discovery are limited in pretrial criminal proceedings.

She would not place the admissibility bar so high. ¶ 83. “[T]he majority opinion’s requiring a specific proffer of exactly how a witness will specifically rebut a prosecution claim undermines the preliminary examination’s purpose of putting the State to its burden and undermines the statutory rights accorded by Wis. Stat. § 970.03(5).” ¶ 81.

 ¶82 Under the majority opinion’s holding, and with the limited tools of criminal discovery available in pretrial proceedings, how can a defendant ever challenge double or triple hearsay in a police report read by an individual who has never interviewed the hearsay declarant? Does a wrongly accused person, under the majority opinion’s reasoning, have any opportunity short of a trial to challenge the plausibility of the State’s case?

¶84 If preliminary examinations are to serve as effective roadblocks to frivolous and fraudulent prosecutions, and if they are truly to be a “critical stage” of trial, the preliminary examination cannot be reduced to a farce, in which a defendant has no ability to challenge or rebut the narrative advanced by the State’s proffered double and triple hearsay testimony.

Right to effective assistance of counsel

The record here reveals that s. 970.038 did not render counsel ineffective. ¶ 44. They cross-examined the police witnesses, “asked probing questions aimed at whether the complaint accurately reflected the reports…,” made closing arguments, objected to the broad time spans alleged for the offenses and to venue. ¶¶ 44-45. “[P]etitioners have failed to demonstrate beyond a reasonable doubt that the introduction of hearsay violated a right to effective assistance of counsel. ¶ 45.

Right to due process of law

After acknowledging that due process challenges concern the fairness of governmental proceedings, the court again relied upon the Fourth Amendment jurisprudence of Gerstein v Pugh to permit state’s discretion to establish procedures for pretrial determinations. ¶ 46. Therefore, not all rights available at a criminal trial need be made available at a preliminary hearing. ¶ 48. Again, this skirts the question of what due process does require in this context. But the court reassures us that the introduction of hearsay under s. 970.038 does not violate those due process rights contained in s. 970.03(5). ¶ 49.

Finally, the court declines to address the defendants request to adopt specific rules limiting the applicability of s. 970.038, observing that the legislature is the proper forum for their requested changes. ¶ 51.

 ¶ 62 Wisconsin Stat. § 970.038 does not set forth a blanket rule that all hearsay be admitted. Circuit courts remain the evidentiary gatekeepers. They must still consider, on a case-by-case basis, the reliability of the State’s hearsay evidence in determining whether it is admissible and assessing whether the State has made a plausible showing of probable cause.

{ 1 comment… add one }
  • Andrew M. Morgan July 14, 2014, 10:14 pm

    Reliability is something greater than plausibility, and yet judges love to recite the rule that all (reasonable) inferences must be found in favor of the State. The word “reasonable” is chanted and then ignored. The gate has flown away.

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