Court of appeals reduces preliminary hearing to mere reading of criminal complaint

By Alexandria Staubach
 
District 4 of the Wisconsin Court of Appeals ruled recently that in a preliminary hearing in a criminal case there is no requirement that any witness have firsthand knowledge of facts of the alleged crime; instead, a mere reading of the criminal complaint may suffice to bind a defendant over for trial if the complaint is thorough and detailed enough.
 
While the court said it would be “difficult to establish generally applicable rules," it rubber-stamped a prosecution in Rock County where the totality of evidence presented by the state was an investigator's reading aloud of the probable cause section of a criminal complaint.
 
Preliminary hearings exist in felony cases to determine whether probable cause exists that an offense was committed on a given day and that the accused is the person who did it.  

If a judge finds probable cause after the hearing, the case is “bound over” for trial or plea negotiations. If not, the case is dismissed.
 
Preliminary hearings are not mini-trials. Credibility of witnesses is not at issue, and the state is given significant benefit of the doubt. A defendant’s ability to confront witnesses or undermine the state’s case at a preliminary hearing is very limited under Wisconsin law but includes the ability to call defense witnesses.

A 2011 statute expanded the field of admissible evidence at a preliminary hearing to include hearsay evidence.
 
Hearsay statements are made outside of court, sometimes second or third hand, and offered for the truth of what is asserted. Hearsay is generally deemed unreliable in court proceedings because the person whose version of events is presented is not in court and not subject to cross examination.
 
In a case challenging the constitutionality of admitting hearsay evidence in preliminary hearings, the Wisconsin Supreme Court in 2014 declined to impose restrictions regarding the use of hearsay at such hearings. The high court found that circuit courts are evidentiary gatekeepers obligated to consider the reliability of the prosecution's hearsay evidence on a case-by-case basis to assess whether the state makes a plausible showing of probable cause.

Blanchard

This week’s District 4 Court of Appeals decision went farther by concluding that under state statutes hearsay alone can be sufficient. Presiding Judge Brian Blanchard wrote for the three-judge panel, joined by Judges JoAnne Kloppenburg and Rachel Graham.
 
Latres Christopher Robinson had been charged with several misdemeanors and felonies allegedly occurring on two separate dates.
 
In the circuit court during Robinson’s preliminary hearing, a Rock County District Attorney’s Office investigator, with no independent knowledge of the facts underlying the allegations, was called as the state’s sole witness and permitted to read the probable cause section of the criminal complaint as evidence for the court. That section of the criminal complaint was detailed and purported to summarize information in police reports. 

​The investigator identified Robinson but was asked no further questions by the prosecution.
 
The defense asked five questions, all of which demonstrated that the investigator had no knowledge of the facts of the case other than what he had read from the complaint.
 
At the end of the hearing, the defense moved to dismiss the case.
 
As described by the Court of Appeals, the trial court concluded that the investigator’s recitation did “not provide sufficiently reliable evidence” because “the evidence consistently involved three levels of hearsay, sometimes four.” The judge found “the preliminary examination was defective because the prosecution presented only one witness who merely parroted the complaint.”
 
Nevertheless, the trial court denied the motion to dismiss “on the ground that the preliminary examination defects constituted harmless error.”
 
The Court of Appeals found that the multiple levels of hearsay were not problematic. The “assessment of reliability of hearsay in this context does not turn on a mechanical tallying of levels of hearsay,” Blanchard wrote.
 
Instead, “the assessment of reliability at a preliminary examination turns on a consideration of the same rationales that render certain types of hearsay statements admissible,” he wrote. “This is because the legislature decided to enact an unqualified elimination of the general rule barring hearsay in this context,” and “because defendants are protected by the obligation of a court to assess whether the evidence presented at a preliminary examination, including hearsay evidence, is sufficiently reliable, as part of the court’s overall determination of whether the State has made a plausible showing of probable cause.”

Blanchard said the court was not creating a general rule that hearsay statements quoting law enforcement agents are necessarily reliable, but that in Robinson's case the statements were thorough and "convey(ed), at least on their face, timely accounts by people with first-hand information, given with what could be appropriate motivations to provide accurate information to police."
 
Robinson argued that permitting the state to proceed in this manner deprived defendants of any “realistic ability to challenge the plausibility of the State’s case.” He called allowing the prosecution to merely read the complaint at the preliminary hearing “a mere façade of justice,” especially when six law enforcement officers were named in the complaint and could have testified.
 
Blanchard wrote that “there is no basis for such a requirement in current statutory language.”

Criminal defense attorneys are concerned. "This case unfortunately takes us one more step down the road toward the complete legal irrelevance of the preliminary hearing in felony prosecutions in Wisconsin," defense attorney Craig Johnson told Wisconsin Justice Initiative after seeing the decision.

"Preliminary hearings have historically served an important gatekeeping function by stopping weak cases from proceeding and sparing those who were falsely accused from further burdens. They were an important early test of probable cause and the strengths of the state's case," he said. "Now they are more like empty shells that provide almost no due process protections."  
 
You can read the full opinion here. 

Note that Johnson is WJI's board president.

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