State v. Charles E. Butts, 850 N.W.2d 8

Background

Wisconsin enacted Wis. Stat. § 970.038 (2011-12), permitting hearsay at preliminary examinations and allowing courts to base probable-cause findings "in whole or in part" on such hearsay.
Two consolidated appeals: the O'Briens (child-abuse complaint relying on interviews and a journal; defense subpoena of a child witness quashed) and Butts (complaints based on victims' statements; State presented officer testimony and transcripts).
Circuit courts admitted hearsay at the preliminary examinations and bound the defendants over for trial; the court of appeals affirmed, emphasizing the court's duty to assess hearsay reliability.
Petitioners challenged § 970.038 as violating Confrontation Clause, compulsory process, effective-assistance-of-counsel, and due-process rights.
The Supreme Court reviewed constitutionality de novo, recognizing the heavy burden to show a statute unconstitutional beyond a reasonable doubt, and noting preliminary examinations are a statutory, limited-probable-cause proceeding, not mini-trials.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 970.038 violates the Confrontation Clause	Petitioners: hearsay admission prevents confrontation of accusers; Confrontation Clause should apply	State: Confrontation Clause is a Sixth Amendment trial right and does not apply to preliminary exams; statute lawful	Court: No constitutional confrontation right at preliminary exam; § 970.038 does not violate confrontation rights
Whether § 970.038 infringes compulsory process (right to call witnesses)	Petitioners: statute enables courts to rely on hearsay and led to quashing subpoenas (e.g., S.M.O.), undermining defendants' right to compulsory process	State: § 970.038 does not alter § 970.03(5)'s authorization to call witnesses; subpoenas limited by relevance to probable cause	Court: Right to compulsory process remains subject to relevance; quash here was based on lack of proffer of relevance, not § 970.038; no violation
Whether hearsay admission denies effective assistance of counsel	Petitioners: counsel cannot effectively challenge the State when only hearsay is presented	State: Preliminary exam is a limited-stage; counsel's role is correspondingly limited but still meaningful (cross-examine, argue plausibility, present witnesses)	Court: Admission of hearsay in this limited proceeding did not render counsel ineffective; defendants had opportunity to cross-examine and argue
Whether § 970.038 violates due process	Petitioners: hearsay reliance at preliminary exams subverts fairness and purpose of the hearing	State: Gerstein permits probable cause determinations on hearsay; preliminary exam is informal and statutory; safeguards remain (cross-exam, court must assess plausibility/reliability)	Court: No due-process violation; preliminary exams are summary proceedings and courts must evaluate hearsay reliability case-by-case

Key Cases Cited

Crawford v. Washington, 541 U.S. 36 (2004) (Confrontation Clause bars testimonial hearsay at trial unless declarant unavailable and defendant had prior opportunity for cross-examination)
Gerstein v. Pugh, 420 U.S. 103 (1975) (Fourth Amendment probable-cause determinations may be made on hearsay and written testimony; formal trial safeguards not constitutionally required at that stage)
State v. Schaefer, 308 Wis. 2d 279 (2008) (Wisconsin preliminary hearing is a critical stage but is limited in scope; counsel's role is narrower than at trial)
State v. Padilla, 110 Wis. 2d 414 (Ct. App.) (preliminary examination requires only that the State present a believable or plausible account; no constitutional confrontation right at preliminary exam)
State v. Muckerheide, 298 Wis. 2d 553 (2007) (constitutional challenges to evidentiary rules are reviewed de novo)