Hearsay is testimony that quotes someone who isn't available to testify. Such testimony has generally been barred at preliminary hearings, where a judge decides whether the case should continue to trial. The proceedings are typically a formality.
Republicans who control the Legislature passed a law in 2012 allowing judges to permit hearsay during the hearings. They argued the change would streamline the hearings by eliminating the need for multiple witnesses to testify about every element of a case and spare crime victims from the trauma of testifying.
Kathleen and Martin O'Brien, a Lake Geneva couple facing child abuse charges, and Charles Butts, a Kenosha man charged with child sexual assault and child enticement, have challenged the law. They maintained it violates their constitutional right to confront their accusers as well as their right to due process. They also argued that the law hamstrings defense attorneys because it's too difficult to challenge hearsay testimony.
The high court ruled 6-1 that the O'Briens and Butts failed to show that the law is unconstitutional. Writing for the majority, Justice Ann Walsh Bradley concluded that the constitutional right to confront accusers is a trial right that doesn't extend to preliminary hearings, pointing to extensive case law from around the country that established that precedent.
She said allowing hearsay doesn't prevent defendants from calling witnesses or defendants' attorneys from cross-examining prosecutors' witnesses or challenging the charges' plausibility. She wrote that attorneys for Butts and the O'Briens asked probing questions and presented arguments on their clients' behalf at their hearings.
"Although (the hearsay law) in a particular case may make the task of the defense more difficult, we are not convinced that the newly enacted statute renders a preliminary hearing a sham, as the petitioners contend," Bradley wrote. "Several procedural and evidentiary safeguards remain unaffected by the passage of the legislation."
The Wisconsin Association of Criminal Defense Lawyers and the state public defender's office jointly filed a brief with the court opposing the law. They argued that it gives defendants no chance short of trial to challenge the legitimacy of a case. An attorney for the defense lawyers didn't immediately return a telephone message. A voicemail left at the public defender's office also wasn't immediately returned.
Chief Justice Shirley Abrahamson, usually one of Bradley's closest allies on the court, was the lone dissenter. She agreed with the defense lawyers and the public defender's office's arguments, questioning how defendants can counter hearsay testimony short of going to trial.
Martin O'Brien's attorney, Jerome Buting, said he was disappointed with the decision. He said his client may ask legislators to change the law or appeal to the U.S. Supreme Court. Preliminary hearings are designed as a check on unwarranted prosecution, he said, but he's not sure whether they'll still serve that purpose under the hearsay allowance.
"They're legitimate concerns, as Shirley Abrahamson said in her dissent," he said.
Attorneys for Kathleen O'Brien and Butts didn't immediately return messages.