Wisconsin Supreme Court upholds law allowing hearsay at preliminary exams in criminal cases
The Wisconsin Supreme Court on Wednesday upheld the state’s 2012 law allowing hearsay at preliminary examinations in criminal cases.
Three defendants had had challenged the practice, contending that it violated their Sixth Amendment rights to confront witnesses against them, but the high court, in a 6-1 decision, ruled that because of the very limited scope of the preliminary hearing, the constitutional right does not attach. The decision affirmed a 2013 Court of Appeals ruling.
At preliminary examinations, prosecutors must establish only that there is probable cause that the defendant committed a felony. The hearing is not constitutionally guaranteed, but provided only by statute.
Hearsay is testimony from a witness about what another witness said, offered for the truth of the statement. It is generally prohibited in court proceedings because it is considered less reliable.
The ruling also notes that the law does not allow prosecutors to introduce any and all hearsay at preliminary exams.
“Circuit courts remain the evidentiary gatekeepers,” Justice Ann Bradley Walsh wrote for the majority. “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.”
Prosecutors say allowing hearsay saves victims from the stress of testifying, and saves time and moneyby reducing the number of witnesses needed to show enough evidence of a crime to convince a judge to order a defendant to stand trial.
Now, a single police officer could assert the summary of evidence in a case at the preliminary hearing. In the cases on appeal, officers testified about what child victims of abuse told them or other investigators.
Attorney General J.B. Van Hollen advocated for completely eliminating preliminary hearings.
Defense attorneys warned against the change, saying the preliminary hearing helps winnow out weak cases and prompt plea bargaining when the state’s evidence and key witnesses appear strong.
In the challenge rejected Wednesday, the defendants argued the use of hearsay at their preliminary examinations violated not only their right to face accusers, but interfered with their rights to effective assistance of counsel and right to due process.
In her dissent, Chief Justice Shirley Abrahamson said the majority goes too far, and that the new law should be “harmonized” with older law giving defendants more rights at preliminary exams.
“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,” Abrahamson said, “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.”