836 N.W.2d 840
Wis. Ct. App.2013Background
- 2011 Wis. Act 285 replaced prior preliminary-exam hearsay rules and created Wis. Stat. § 970.038, making hearsay admissible at preliminary examinations and permitting probable-cause/findings to be based "in whole or in part" on hearsay.
- Butts: charged with child sexual assault; preliminary exam relied on a police detective who testified about one child's identification and recounted another child's statement; trial court overruled hearsay objection and bound over Butts.
- O'Briens: charged with multiple counts of child abuse based on allegations from adopted children; trial court admitted hearsay from a police investigator, quashed a defense subpoena for a victim, and bound over the defendants.
- Defendants appealed, arguing § 970.038 violates the Confrontation Clause, the Compulsory Process Clause, and the right to effective assistance of counsel.
- The Wisconsin Supreme Court granted review to decide whether admission of and reliance upon hearsay at preliminary examinations infringes those constitutional rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 970.038 violates the Sixth Amendment Confrontation Clause | Statute denies defendants the right to confront adverse witnesses pretrial | Confrontation is primarily a trial right; preliminary exams have limited confrontation role | Rejected: Confrontation right is mainly a trial right; hearsay at preliminaries does not facially violate the Confrontation Clause |
| Whether admitting hearsay at preliminary exam denies due process by undermining a fair probable-cause inquiry | Hearsay reliance prevents meaningful adversary testing and may produce unreliable bindovers | Preliminary exam purpose is to test plausibility, not determine guilt; hearsay can be weighed for plausibility case-by-case | Rejected: Due process satisfied because preliminary exam only requires a plausible account; courts must consider reliability/plausibility |
| Whether § 970.038 infringes the Compulsory Process Clause by limiting defendants' ability to call/cross-examine witnesses | New law degrades defendants' ability to subpoena and confront witnesses at preliminaries | Statute left existing subpoena/cross-examination rights unchanged; scope limited by exam purpose (plausibility) | Rejected: Defendants retain subpoena and cross-examination rights subject to relevance to plausibility |
| Whether § 970.038 denies effective assistance of counsel at a critical stage | Counsel cannot effectively test the State's case if hearsay predominates | Counsel can still challenge plausibility, present evidence, and argue bindover should not occur | Rejected: Counsel can provide effective representation by attacking plausibility; prelim is a summary probable-cause proceeding |
Key Cases Cited
- Gerstein v. Pugh, 420 U.S. 103 (explaining probable-cause determination for pretrial restraint may be based on hearsay)
- Costello v. United States, 350 U.S. 359 (upholding grand jury indictments supported solely by hearsay)
- California v. Green, 399 U.S. 149 (distinguishing hearsay rule and Confrontation Clause purposes)
- Barber v. Page, 390 U.S. 719 (describing confrontation as basically a trial right)
- Pennsylvania v. Ritchie, 480 U.S. 39 (confirming confrontation is a trial right and addressing pretrial due process limits)
- State v. Schaefer, 308 Wis. 2d 279 (WI 2008) (describing limited purpose and scope of preliminary examinations)
- State v. Padilla, 110 Wis. 2d 414 (discussing plausibility standard at bindover)
- State v. Dunn, 121 Wis. 2d 389 (clarifying distinction between plausibility and credibility at preliminaries)
- Mitchell v. State, 84 Wis. 2d 325 (noting no right to confront absent witnesses at preliminary hearing)
- State v. Jensen, 299 Wis. 2d 267 (review standard for confrontation clause challenges to evidence admission)