2013 Wisconsin Statutes & Annotations
970. Criminal procedure — preliminary proceedings.
970.038 Preliminary examination; hearsay exception.
970.038 Preliminary examination; hearsay exception.
(1) Notwithstanding s. 908.02, hearsay is admissible in a preliminary examination under ss. 970.03, 970.032, and 970.035.
(2) A court may base its finding of probable cause under s. 970.03 (7) or (8), 970.032 (2), or 970.035 in whole or in part on hearsay admitted under sub. (1).
History: 2011 a. 285.
Nothing in the Wisconsin or federal constitutions prohibits allowing the finder of fact at a preliminary examination to consider and rely on hearsay evidence to determine that the state has presented a "believable account of the defendant's commission of a felony." This section is facially consistent with the constitutional rights to confrontation and due process. It has no impact on the defendants' rights to subpoena witnesses or conduct cross-examination regarding facts relevant to the plausibility of the state's case, either facially or in the particular instances in this case, as guaranteed by the compulsory process clause. The right to assistance of counsel is not violated. State v. O'Brien, 2013 WI App 97, ___ Wis. 2d ___, ___ N.W.2d ___, 12-1769.
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