                                                                    2014 WI 54

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:                2012AP1769-CR, 2012AP1770-CR, 2012AP1863-CR
COMPLETE TITLE:          State of Wisconsin,
                                   Plaintiff-Respondent,
                              v.
                         Martin P. O'Brien,
                                   Defendant-Appellant-Petitioner.
                         ----------------------------------------------
                         State of Wisconsin,
                                   Plaintiff-Respondent,
                              v.
                         Kathleen M. O'Brien,
                                   Defendant-Appellant-Petitioner.
                         ----------------------------------------------
                         State of Wisconsin,
                                   Plaintiff-Respondent,
                              v.
                         Charles E. Butts,
                                   Defendant-Appellant-Petitioner.



                            REVIEW OF A DECISION OF THE COURT OF APPEALS
                             Reported at 349 Wis. 2d 667, 836 N.W.2d 840
                                     (Ct. App. 2013 – Published)
                                          PDC No: 2013 WI 97

OPINION FILED:           July 9, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           March 14, 2014

SOURCE OF APPEAL:
   COURT:                Circuit/Circuit/Circuit
   COUNTY:               Walworth/Walworth/Kenosha
   JUDGE:                John R. Race/James L. Carlson/Anthony G.
                         Milisauskas

JUSTICES:
   CONCURRED:
   DISSENTED:            ABRAHAMSON, C.J., dissents. (Opinion filed.)
   NOT PARTICIPATING:

ATTORNEYS:
       For    the       defendant-appellant-petitioner   Charles   E.   Butts,
there were briefs by Terry W. Rose and Rose & Rose, Kenosha, and
oral argument by Terry W. Rose.
    For the defendants-appellants-petitioners Martin P. O’Brien
and Kathleen M. O’Brien, there were briefs by Jerome F. Buting
and Buting, Williams & Stilling, S.C., Brookfield; and Kathleen
M. Quinn, Milwaukee. Oral argument by Jerome F. Buting.


    For     the    plaintiff-respondent,        the   cause    was    argued    by
Jeffrey J. Kassel, assistant attorney general, with whom on the
brief was J.B. Van Hollen, attorney general.


    An amicus curiae brief was filed by Marcus J. Berghahn and
Hurley,   Burish    &   Stanton,   S.C.,   Madison;     and    Devon    M.     Lee,
assistant   state    public   defender,    on    behalf   of    the    Wisconsin
Association of Criminal Defense Lawyers and Wisconsin Office of
the State Public Defender.




                                     2
                                                                        2014 WI 54
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.    2012AP1769, 2012AP1770, 2012AP1863
(L.C. No.   2012CF00229, 2012CF000230, 2012CF000466)

STATE OF WISCONSIN                            :            IN SUPREME COURT

State of Wisconsin,

            Plaintiff-Respondent,                                    FILED
      v.
                                                                 JUL 9, 2014
Martin P. O'Brien,
                                                                   Diane M. Fremgen
                                                                Clerk of Supreme Court
            Defendant-Appellant-Petitioner.
_________________________________________

State of Wisconsin,

            Plaintiff-Respondent,

      v.

Kathleen O'Brien,

          Defendant-Appellant-Petitioner.
_________________________________________

State of Wisconsin,

            Plaintiff-Respondent,

      v.

Charles E. Butts,

            Defendant-Appellant-Petitioner.




      REVIEW of a decision of the Court of Appeals.                Affirmed.
                                               No.    2012AP1769, 2012AP1770, & 2012AP1863




      ¶1       ANN   WALSH     BRADLEY,         J.     The    petitioners,        Martin   and

Kathleen O'Brien and Charles Butts, seek review of a published

court     of    appeals    decision        that       affirmed     the     circuit     courts'

determinations        that     the       use    of     hearsay     at    the     petitioners'

preliminary examinations was constitutionally permissible.1

      ¶2       On review, petitioners assert that the newly enacted

Wis. Stat. § 970.038 (2011-12),2 which permits hearsay evidence

at    preliminary         examinations,              violates      their     constitutional

rights.           Specifically,           they        argue     that       the    rights    to

confrontation,         compulsory          process,          effective      assistance       of

counsel, and due process are violated by the application of Wis.

Stat. § 970.038 in preliminary examinations.

      ¶3       We determine that petitioners have failed to meet the

heavy burden of showing beyond a reasonable doubt that                                     Wis.

Stat. § 970.038 is unconstitutional.                          The scope of preliminary

examinations is limited to determining whether there is probable

cause     to    believe    that      a    defendant          has   committed       a   felony.
Following precedent, we conclude that there is no constitutional

right to confrontation at a preliminary examination.                                   Further,

due     to     the   limited    scope          of     preliminary        examinations,      we

      1
       The circuit court orders were consolidated on appeal.
State v. O'Brien, 2013 WI App 97, 349 Wis. 2d 667, 836 N.W.2d
840 (affirming orders of the circuit court for Walworth County,
John R. Race, Judge, and James L. Carlson, Judge, and the
circuit court for Kenosha County, Anthony G. Milisaukas, Judge).
      2
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.

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                                              No.          2012AP1769, 2012AP1770, & 2012AP1863



determine      that       the    admission          of       hearsay      evidence       does   not

violate      petitioners'         rights      to        compulsory        process,       effective

assistance of counsel, or due process.

      ¶4      Finally, we decline petitioners' invitation to impose

new rules limiting the admissibility of hearsay at preliminary

examinations.         Wisconsin Stat. § 970.038 does not set forth a

blanket      rule    that       all    hearsay         be       admitted.      Circuit      courts

remain the evidentiary gatekeepers.                              They must still consider,

on a case-by-case basis, the reliability of the State's hearsay

evidence in determining whether it is admissible and assessing

whether      the    State       has    made    a       plausible         showing    of    probable

cause.       Accordingly, we affirm the decision of the court of

appeals.

                                                   I

      ¶5      The    facts       and    history            in    these    consolidated        cases

differ, but they share common issues.

      ¶6      The complaint against the O'Briens alleges ten counts

of   child    abuse       and    seven      counts          of    disorderly       conduct.      It
identifies six adopted children, four of whom were siblings the

O'Briens adopted from Russia.                          According to the complaint the

allegations        were    based       on   the        children's         reports    of    various

incidents with the O'Briens.                       The complaint further indicates

that some of the allegations were corroborated by statements in

Kathleen O'Brien's journal and others were corroborated by the

O'Briens' biological daughter.

      ¶7      Martin      O'Brien       filed          a    motion     to   preclude      hearsay
evidence     at     the    preliminary         examination           and    Kathleen       O'Brien
                                                   3
                                    No.   2012AP1769, 2012AP1770, & 2012AP1863



joined in the motion.        It challenged the constitutionality of

Wis. Stat. § 970.038, which permits hearsay at a preliminary

examination.     The circuit court denied the motion.

    ¶8      At   the   O'Briens'    preliminary   examination      the   State

presented the testimony of Investigator Domino, who had signed

the complaint next to a statement that she was swearing to its

accuracy.    She had no personal knowledge of the allegations in

the complaint.     According to her testimony, Domino reviewed the

complaint and compared it with police reports and her memory

before signing it.       She stated that she was present while Ms.

Hocking, a social worker from the Walworth County Department of

Health and Human Services, interviewed some of the children and

that she viewed the other interviews on videotape.                Domino also

had the opportunity to speak directly with one of the children,

S.M.O., in a follow-up interview.             After she testified to the

basis for the statements in the complaint, the court received

the complaint into evidence.

    ¶9      On cross-examination, Domino clarified that one of the
children named in the complaint was not interviewed at all.                She

acknowledged that the complaint did not contain the complete

statement from S.M.O. that provided the factual basis for count

one, but was a summary.            The other counts were based on the

interviews she reviewed.       Domino stated that she also reviewed

Kathleen    O'Brien's    journal     before    testifying    in    order   to

determine the dates of various incidents.           Although she provided

some additional detail during cross-examination, Domino could


                                      4
                                       No.          2012AP1769, 2012AP1770, & 2012AP1863



not remember enough about the interviews to respond to many of

counsels' questions.

      ¶10   After the State rested, the O'Briens sought to present

the testimony of S.M.O., whom they had subpoenaed as a witness.

The State objected, arguing that the O'Briens needed to provide

an offer of proof before introducing the witness.                        The O'Briens

responded that S.M.O.'s testimony was relevant because it would

fill in the gaps in Investigator Domino's story.                       They explained

that if the complete story was disclosed, it may appear that the

actions were accidental as opposed to intentional.                                However,

they were not sure what S.M.O. would actually say.                           The circuit

court determined that a claim of accident is a defense, and thus

not   relevant    to   a   preliminary          examination.          Accordingly,        it

sustained   the    objection.          The      O'Briens      were    bound       over   for

trial.

      ¶11   The complaint against Butts contains four counts of

sexual   assault    of     a   child   as       a    persistent    repeater        and   two

counts of child enticement as a persistent repeater.                          The first
four counts involved two incidents with A.V.                            The       complaint

indicates that the probable cause for those counts was provided

by statements from A.V., her mother, and Butts regarding the

incident.     Counts four and five involved incidents with A.R.E.

and her brother.           The complaint indicates that the probable

cause for those counts was based on statements from A.R.E., her

stepmother, A.R.E.'s mother, and A.R.E.'s stepfather.

      ¶12   Butts submitted a motion to preclude hearsay at his
preliminary      examination,      arguing           that   Wis.     Stat.    §    908.038
                                            5
                                         No.    2012AP1769, 2012AP1770, & 2012AP1863



violated his constitutional rights.                 At the motion hearing, the

State acknowledged that it intended to rely on the statute and

to present a police officer at the preliminary examination who

would testify about the children's statements.                          The children

would not be present.           The circuit court denied Butts' motion.

       ¶13    At Butts' preliminary examination the State moved into

evidence a transcript from a prior preliminary hearing regarding

A.R.E.'s allegations.           The State also presented the testimony of

Detective Barfoth.          She testified that she had been assigned to

investigate the case involving A.R.E.                  Barfoth spoke with A.R.E.

who    told    her    about     the    alleged      incident.          After     Barfoth

presented     her    with   a    photo   lineup,       A.R.E.   identified        Butts.

Barfoth also identified a statement given by A.V. and then read

it into the record.              On cross-examination, Barfoth testified

that she was not sure who took the statement from A.V. and that

she was not present when the statement was taken.

       ¶14    The State then moved A.V.'s statement into evidence,

rested its case, and asked that Butts be bound over for trial.
In response, Butts moved for a dismissal.                    The court determined

that   there    was    probable       cause    to   believe     that    a    felony   or

felonies were committed and that Butts committed a felony and

bound Butts over for trial.

       ¶15     The    court     of    appeals       accepted     and     consolidated

interlocutory appeals from Butts and the O'Briens challenging

the    constitutionality         of    Wis.    Stat.     §   970.038        on   various

grounds.      In its decision, the court of appeals emphasized the
circuit court's duty "to consider the apparent reliability of
                                           6
                                        No.        2012AP1769, 2012AP1770, & 2012AP1863



the State's evidence."             State v. O'Brien, 2013 WI App 97, ¶2,

349 Wis. 2d 667, 836 N.W.2d 840.                     Observing that the probable

cause     determination      is     made      on       a   case-by-case           basis,    it

acknowledged that "the hearsay nature of evidence may, in an

appropriate       case,    undermine    the        plausibility          of      the   State's

case."      Id.       Ultimately,       however,           it     concluded        that    the

admission of hearsay evidence pursuant to Wis. Stat. § 970.038

presents no blanket constitutional problems.

                                            II

    ¶16     In      this     case      we        are       asked        to       review    the

constitutionality of newly enacted Wis. Stat. § 970.038 which

permits     the     use     of     hearsay         evidence        at        a   preliminary

examination.       Although evidentiary rulings are generally deemed

a matter for the circuit court's discretion, a constitutional

challenge     presents       a     question         of      law     which         we   review

independently of the decisions rendered by the circuit court and

the court of appeals.            State v. Muckerheide, 2007 WI 5, ¶17, 298

Wis. 2d 553, 725 N.W.2d 930; State v. Quintana, 2008 WI 33, ¶12,
308 Wis. 2d 615, 748 N.W.2d 447.

    ¶17     A party challenging the constitutionality of a statute

bears the burden of showing beyond a reasonable doubt that the

statute violates the constitution.                     State v. Williams, 2012 WI

59, ¶11, 341 Wis. 2d 191, 814 N.W.2d 460.                               This is a heavy

burden as statutes are presumed constitutional and we resolve

any reasonable doubt in favor of upholding a challenged statute.

Bostco LLC v. Milwaukee Metro. Sewerage Dist., 2013 WI 78, ¶76,
350 Wis. 2d 554, 835 N.W.2d 160.
                                            7
                                         No.    2012AP1769, 2012AP1770, & 2012AP1863



                                          III

    ¶18       Our     analysis     begins       with    a        brief      overview     of

preliminary examinations.           We then address in turn each of the

constitutional         challenges        that     the       petitioners          present,

beginning      with    their     challenge      based       on       the    Confrontation

Clause, followed by their challenges alleging violations of the

right to compulsory process, the right to effective assistance

of counsel, and the right to due process.                        Finally, we discuss

the petitioners' request that we impose new rules limiting the

admissibility of hearsay evidence at preliminary examinations.

                                           A

    ¶19       A defendant charged with a felony is entitled to a

hearing pursuant to Wis. Stat. § 970.03 to determine whether

there    is   probable     cause    to    believe      that      a    felony    has    been

committed by that defendant.              This hearing is referred to as a

preliminary examination.           The right to a preliminary examination

is not constitutionally guaranteed and is solely a statutory

right.    State v. Schaefer, 2008 WI 25, ¶84, 308 Wis. 2d 279, 746
N.W.2d 457; State v. Dunn, 121 Wis. 2d 389, 393, 359 N.W.2d 151

(1984); State v. Camara, 28 Wis. 2d 365, 370, 137 N.W.2d 1

(1965).

    ¶20       Traditionally,       Wisconsin's         rules         of    evidence,    set

forth in chs. 901 to 911, Stats., have applied to preliminary

examinations.         State v. Moats, 156 Wis. 2d 74, 85, 457 N.W.2d

299 (1990).         Under those rules hearsay is inadmissible unless

permitted     by    rule   or    statute.        Wis.    Stat.        §    908.02.     The
legislature recently enacted Wis. Stat. § 970.038 permitting the
                                           8
                                     No.       2012AP1769, 2012AP1770, & 2012AP1863



admission of hearsay evidence at a preliminary examination and

permitting a court to make the probable cause determination "in

whole or in part" based on hearsay evidence.                It provides:

    (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).
Wis. Stat. § 970.038.

    ¶21    The court has often referred to the important purpose

preliminary examinations serve in protecting defendants and the

public from unwarranted prosecution.                 In essence, they serve as

a check on prosecutorial discretion.                 For example, as far back

as 1922, the court stated:

    The object or purpose of the preliminary investigation
    is to prevent hasty, malicious, improvident, and
    oppressive prosecutions, to protect the person charged
    from open and public accusations of crime, to avoid
    both for the defendant and the public the expense of a
    public trial, and to save the defendant from the
    humiliation   and    anxiety   involved    in   public
    prosecution, and to discover whether or not there are
    substantial grounds upon which a prosecution may be
    based.
Thies v. State, 178 Wis. 98, 103, 189 N.W. 539 (1922).

    ¶22    More     recently,      the       court    reiterated     this   point

explaining   that     "[r]equiring         a    finding    of   probable    cause

protects the defendant's due process rights and guards against

undue   deprivations    of   the    defendant's         liberty."       State   v.

Richer, 174 Wis. 2d 231, 240, 496 N.W.2d 66 (1993); see also
State v. Hooper, 101 Wis. 2d 517, 544-45, 305 N.W.2d 110 (1981)

                                         9
                                        No.    2012AP1769, 2012AP1770, & 2012AP1863



(it is the purpose of a preliminary examination to determine

whether    there     is    "a    substantial       basis    for    bringing      the

prosecution    and     further     denying      the   accused      his   right   to

liberty.").

    ¶23     Highlighting the importance of these proceedings, we

have referred to them as a "critical stage" in the criminal

process.     Schaefer, 308 Wis. 2d 279, ¶84; State v. Wolverton,

193 Wis. 2d 234, 252, 533 N.W.2d 167 (1995) (citing Coleman v.

Alabama, 399 U.S. 1, 9 (1970)); see also Gates v. State, 91 Wis.

2d 512, 522, 283 N.W.2d 474 (Ct. App. 1979).

    ¶24     The scope of preliminary examinations is narrow.                      It

is limited to determining whether the account presented by the

State, if believed, has a plausible basis supporting a probable

cause determination.        State v. Padilla, 110 Wis. 2d 414, 423-24,

329 N.W.2d 263 (Ct. App. 1982); see also Dunn, 121 Wis. 2d at

398 ("probable cause at a preliminary hearing is satisfied when

there     exists   a      believable      or    plausible     account     of     the

defendant's commission of a felony.").                 These examinations are
intended to be summary in nature and not mini-trials.                    Schaefer,

308 Wis. 2d 279, ¶34; Dunn, 121 Wis. 2d at 396-97; Hooper, 101

Wis. 2d at 544-45.

    ¶25     The fact that Wisconsin has preliminary examinations

at all exceeds the requirements of the Fourth Amendment.                         The

United    States   Supreme      Court    has   concluded    that    although     the

Fourth Amendment requires a judicial determination of probable

cause as a prerequisite to the extended restraint on liberty,
adversary proceedings are not necessary.                Gerstein v. Pugh, 420
                                         10
                                             No.    2012AP1769, 2012AP1770, & 2012AP1863



U.S. 103, 120 (1975).                  Due to the limited scope of probable

cause determinations, informal proceedings are sufficient.                             Id.

       ¶26   The Gerstein Court further opined that the probable

cause     determination          may    be     made      "on    hearsay      and     written

testimony."      Id.        It explained that the value of confrontation

and cross-examination "would be too slight to justify holding,

as a matter of constitutional principle, that these formalities

and    safeguards   designed           for    trial     must    also    be    employed    in

making the Fourth Amendment determination of probable cause."

Id. at 122.

       ¶27   With      this      background,            we     turn    to    petitioners'

arguments.

                                               B

       ¶28   The petitioners assert that by permitting the use of

hearsay      evidence       at    preliminary           examinations,         Wis.     Stat.

§ 970.038 violates their rights under the Confrontation Clause.

This    argument       is     premised        upon      the     assumption      that     the

Confrontation       Clause        applies          to    preliminary         examinations.
Because we conclude that this underlying assumption is flawed,

we must reject petitioners' argument.

       ¶29   The right to confront one's accuser is found in the

Sixth Amendment to the United States Constitution.                            It provides

that:

       In all criminal prosecutions, the accused shall enjoy
       the right . . . to be confronted with the witnesses
       against him; to have compulsory process for obtaining
       witnesses in his favor, and to have the Assistance of
       Counsel for his defence.


                                              11
                                          No.     2012AP1769, 2012AP1770, & 2012AP1863



U.S. Const., Amend. VI.            In Crawford v. Washington, 541 U.S. 36,

68 (2004), the Supreme Court determined that the Confrontation

Clause prohibits the use of testimonial hearsay at a criminal

trial unless the declarant is unavailable and the defendant has

had a prior opportunity for cross-examination.                         The issue in

Crawford was presented in the context of a criminal trial and,

accordingly, the court did not address whether the Confrontation

Clause applied to preliminary hearings.

       ¶30   However, that issue has been addressed by Wisconsin

courts.      Our caselaw establishes that the Confrontation Clause

does   not   apply   to    preliminary          examinations.         State    ex    rel.

Funmaker v. Klamm, 106 Wis. 2d 624, 634, 317 N.W.2d 458 (1982)

(citing Mitchell v. State, 84 Wis. 2d 325, 336, 267 N.W.2d 349

(1978)) ("There is no constitutional right to confront adverse

witnesses at a preliminary examination."); State v. Oliver, 161

Wis. 2d 140, 146, 467 N.W.2d 211 (Ct. App. 1991) ("[Defendant]

did not have a constitutional right of 'confrontation' at his

preliminary examination."); Padilla, 110 Wis. 2d at 422 ("Of
course, there is no constitutional right to confront a witness

at a preliminary examination.").

       ¶31   Our   precedent        is     consistent      with    that       of    other

jurisdictions which have determined that a defendant's right to

confront     accusers     is   a   trial        right   that   does   not     apply    to

preliminary examinations.                See, e.g., Peterson v. California,

604 F.3d 1166, 1170 (9th Cir. 2010); State v. Lopez, 314 P.3d

236, 241-42 (N.M. 2013); Leitch v. Fleming, 732 S.E.2d 401, 404
(Ga. 2012); State v. Timmerman, 218 P.3d 590, 594 (Utah 2009);
                                           12
                                      No.    2012AP1769, 2012AP1770, & 2012AP1863



Sheriff v. Witzenburg, 145 P.3d 1002, 1005 (Nev. 2006); Whitman

v. Superior Court, 820 P.2d 262, 270 (Cal. 1991); Commonwealth

v. Tyler, 587 A.2d 326, 328 (Pa. Super. Ct. 1991); Blevins v.

Tihonovich, 728 P.2d 732, 734 (Colo. 1986); State v. Sherry, 667

P.2d 367, 376 (Kan. 1983); Wilson v. State, 655 P.2d 1246, 1250

(Wyo. 1982); People v. Blackman, 414 N.E.2d 246, 247-48 (Ill.

App. Ct. 1980).

       ¶32   Petitioners     contend        that   even     if    there      is    no

constitutional       right   to   confront     witnesses     at   a   preliminary

hearing, they have a statutory confrontation right preserved in

Wis.   Stat.     §   970.03(5).      That    statute    provides      that   "[t]he

defendant may cross-examine witnesses against the defendant."

Wis. Stat. § 970.03(5).

       ¶33   Contrary to petitioners' assertions the statute does

not    create    a   confrontation     right.          As   the   Padilla     court

explained, Wis. Stat. § 970.03(5) does not require the State to

present      a   defendant    with     hearsay      declarants        for    cross-

examination, rather it "permits cross-examination of only those
people actually called to the stand."              110 Wis. 2d at 424.            This

interpretation is supported by the Judicial Council Note (1990)

to Wis. Stat. § 970.03 which states "[t]he right to confront

one's accusers does not apply to the preliminary examination."

Accordingly, we conclude that the petitioners have failed to

demonstrate beyond a reasonable doubt that Wis. Stat. § 970.038

violates any constitutional or statutory right to confrontation.

                                        C


                                       13
                                               No.    2012AP1769, 2012AP1770, & 2012AP1863



       ¶34       We turn next to petitioners' assertion that Wis. Stat.

§ 970.038 violates their right to call witnesses pursuant to the

compulsory process clause.                    We acknowledge that defendants have

a   right            to    compulsory     process        at     preliminary          hearings.

Schaefer, 308 Wis. 2d 279, ¶35.                      However, we determine that this

right is not violated by Wis. Stat. § 970.038.

       ¶35       As noted above, Wis. Stat. § 970.038 permits the use

of hearsay at a preliminary examination.                          However, it does not

address         or    alter      the   provisions       in    Wis.     Stat.    § 970.03(5)

authorizing defendants to call witnesses, nor does it prevent

them from doing so.3

       ¶36       The       O'Briens    specifically          allege    that    the    circuit

court applied Wis. Stat. § 970.038 to justify its narrow view of

relevancy            and     quash     their     subpoena       for     S.M.O.,       thereby

infringing           on    their     compulsory      process    rights.        We     are   not

convinced.

       ¶37       A defendant's right to call witnesses at a preliminary

examination is not an unrestricted right.                         State v. Knudson, 51
Wis. 2d 270, 280, 187 N.W.2d 321 (1971).                          To overcome a motion

to quash a subpoena at a preliminary examination, the defendant

must       be   able       to   show   that    the    evidence    is    relevant       to   the

probable cause determination.




       3
       Wisconsin Stat. § 970.03(5) states: "All witnesses shall
be sworn and their testimony reported by a phonographic
reporter. The defendant may cross-examine witnesses against the
defendant, and may call witnesses on the defendant's own behalf
who then are subject to cross-examination."
                                                14
                                           No.        2012AP1769, 2012AP1770, & 2012AP1863


       [A]lthough a defendant may subpoena witnesses and
       evidence for the preliminary examination, his subpoena
       may be quashed, a witness may not be allowed to
       testify, or evidence may be excluded if the defendant
       is unable to show the relevance of the testimony or
       evidence to the rebut probable cause.
Schaefer, 308 Wis. 2d 279, ¶37.                       Issues relating to weight and

credibility are outside the scope of a preliminary examination.

Id. at ¶36; Klamm, 106 Wis. 2d at 630.                          It is not intended to

serve a discovery function.              Knudson, 51 Wis. 2d at 281.

       ¶38   Counsel's        statements         at    the    preliminary     examination
reveal that Martin O'Brien sought to subpoena S.M.O., a child

witness, for purposes of discovery.                      When asked for a proffer as

to what S.M.O. would testify about, counsel for Martin O'Brien

responded that Investigator Domino's statements were a summary

and did not necessarily tell the whole story.                         Counsel suggested

that   the     victim's       statements         could       have   been    taken   out    of

context.       She explained that the complete story could reveal

that    certain       actions     were     not        intentional.          However,      she

indicated      that     the     victim     may        not     contradict     Investigator

Domino's testimony, stating "I don't really know."                             Absent any

idea    what     S.M.O.       would   testify          to,     counsel's     proffer      was

insufficient to show that S.M.O.'s testimony would be relevant

to the probable cause inquiry.

       ¶39   Thus, the circuit court quashed the O'Briens' subpoena

for the testimony of S.M.O. because the O'Briens were unable to

establish      that    it     would   be    relevant          to    the    probable    cause

inquiry.       The court's narrow view of admissibility was not based
on Wis. Stat. § 970.038.                 Rather, it was based on the narrow


                                            15
                                            No.       2012AP1769, 2012AP1770, & 2012AP1863



scope of the examination: determining whether there is probable

cause to believe that the defendant has committed a felony.                                    See

Schaefer, 308 Wis. 2d 279, ¶85.                       Accordingly, we conclude that

the petitioners failed to carry their burden of showing beyond a

reasonable doubt that Wis. Stat. § 970.038 on its face or in its

application violates the right to compulsory process.

                                               D

       ¶40    We turn now to the impact of Wis. Stat. § 970.038 on a

defendant's         right   to    assistance            of      counsel.          It   is     well

established that a preliminary examination is a critical stage

of    the    prosecution     at    which          the      defendant         is   entitled     to

counsel.       Coleman v. Alabama, 399 U.S. 1, 10 (1970) ("[T]he

Alabama preliminary hearing is a 'critical stage' of the State's

criminal process at which the accused is 'as much entitled to

such   aid    [of     counsel]     .    .    .     as      at     the    trial       itself.'");

Schaefer, 308 Wis. 2d 279, ¶84 ("[A] preliminary hearing is a

critical      stage    in   the    criminal           process.      Consequently,            every

defendant charged with a felony in Wisconsin is constitutionally
entitled      to     the    assistance           of     counsel         at    a     preliminary

hearing.");        Wolverton,     193    Wis.         2d     at   253    ("[T]he       Wisconsin

preliminary hearing is undoubtedly a 'critical stage' of the

Wisconsin criminal process. Hence, every defendant charged with

a    felony    in     Wisconsin    is       constitutionally             entitled        to    the

assistance of counsel at the preliminary hearing.").

       ¶41    Petitioners assert that the use of hearsay evidence at

a    preliminary       hearing     necessarily               precludes        the      effective
assistance      of     counsel.         They       contend        that       where     the    only
                                             16
                                            No.    2012AP1769, 2012AP1770, & 2012AP1863



evidence the State presents is hearsay, counsel has no ability

to effectively argue before the court.

       ¶42     A   similar     challenge      was    addressed      in    Schaefer,     308

Wis. 2d 279.             There, the court considered whether the inability

of   counsel       to     access   police     reports      and    other    investigatory

materials violated a defendant's right to assistance of counsel

at a preliminary hearing.                Id. at ¶83.         It explained that the

nature    of       the    proceedings      shapes    the    determination         of   what

constitutes effective assistance of counsel:

       In   considering  [defendant's]  right   to  effective
       assistance of counsel at a preliminary examination, we
       must keep in mind the narrow purpose of the hearing.
       "[T]he limited scope of the preliminary hearing
       compresses the contours of the sixth amendment." "In
       particular, the defendant's right to present evidence
       and cross-examine the state's witnesses is severely
       limited by the summary nature of the preliminary
       hearing."
Id. at ¶85 (internal citations omitted).                           Given the limited

scope of preliminary examinations, the court determined that the

inability of counsel to obtain the evidence at issue prior to

the preliminary examination did not render him ineffective.                             Id.
at ¶91.

       ¶43     Likewise,      here    we     determine     that     the    admission     of

hearsay       at     a     preliminary       hearing       does    not     infringe      on

defendants' right to assistance of counsel.                       "[T]he constitution

does not require that counsel be allowed to play the same role

[at a preliminary examination] as counsel at trial.                          A counsel's

role     is    necessarily         limited    by    the     limited       scope   of    the
preliminary examination."              Klamm, 106 Wis. 2d at 634.                 Contrary

                                             17
                                      No.        2012AP1769, 2012AP1770, & 2012AP1863



to petitioners' assertions, the admission of hearsay does not

eliminate     counsel's      ability        to        provide     assistance         at     a

preliminary examination.          Counsel retains the ability to cross-

examine   the    witnesses    presented          by    the   State,         challenge     the

plausibility of the charges against the defendant, argue that

elements are not met, and present witnesses on behalf of the

defendant.      Wis. Stat. § 970.03.

    ¶44     The record here reveals that Wis. Stat. § 970.038 did

not render counsel ineffective at the preliminary examinations.

At the O'Briens' preliminary examination, counsel cross-examined

Investigator     Domino.      They    asked        probing       questions       aimed     at

whether   the    complaint       accurately           reflected       the    reports      and

interviews Investigator Domino had reviewed.                           They also made

closing arguments about the complainants' failure to identify

the defendants, the failure to show injury, and the hearsay

declarants' inability to observe all of the alleged abuse.                                 In

addition, they objected to the broad timespan alleged in the

complaint.      These actions demonstrate that the O'Briens' counsel
assisted the O'Briens at the preliminary examination and were

not ineffective due to the admission of hearsay.

    ¶45     Likewise,      Butts'     counsel          was      not    prevented        from

assisting    Butts   at    his   preliminary           examination.            She   cross-

examined Detective Barfoth, asking who took the statement from

the alleged victim.          She also presented the argument that the

statement introduced into evidence was insufficient because it

did not identify defendant as the person in the statement.                                She
further     argued   that     there    was        an     insufficient          basis      for
                                       18
                                  No.       2012AP1769, 2012AP1770, & 2012AP1863



establishing venue.      Indeed, the circuit court agreed that venue

had not been established for one of the counts, but bound Butts

over for trial because it had to determine probable cause on

only one of the felony counts.              Accordingly, we conclude that

the petitioners have failed to demonstrate beyond a reasonable

doubt that the introduction of hearsay evidence violated a right

to effective assistance of counsel.

                                       E

    ¶46   We   address    next   the    petitioners'     argument    that   the

introduction of hearsay at preliminary examinations violates the

right to due process.        A due process challenge concerns the

fairness of governmental action or proceedings.                State ex rel.

Lyons v. De Valk, 47 Wis. 2d 200, 205, 177 N.W.2d 106 (1970).

The United States Supreme Court has determined that informal

proceedings are sufficient for probable cause determinations and

that states have discretion in establishing the procedures for

such determinations.       Gerstein, 420 U.S. at 121.               Thus, the

right to a preliminary examination is solely a statutory right.
Schaefer, 308 Wis. 2d 279, ¶84; Dunn, 121 Wis. 2d 389, 393;

Camara, 28 Wis. 2d 365, 370.

    ¶47   Although a defendant is entitled to due process at

hearings created by statute, that does not mean that every time

a statute creates a right to a hearing, a party is entitled to

the full panoply of rights available at a criminal trial.                    To

the contrary, we have repeatedly held that a preliminary hearing

is not a preliminary trial or a mini-trial.              Schaefer, 308 Wis.


                                       19
                                     No.   2012AP1769, 2012AP1770, & 2012AP1863



2d 279, ¶34; State v. Stuart, 2005 WI 47, ¶30, 279 Wis. 2d 659,

695 N.W.2d 259; Dunn, 121 Wis. 2d at 396-97.

       ¶48   Thus, not all the procedural rights available in a

criminal trial are available at a preliminary examination.                  See,

e.g., Mitchell, 84 Wis. 2d at 336 (there is no confrontation

right at a preliminary examination); State v. White, 2008 WI App

96, ¶13, 312 Wis. 2d 799, 754 N.W.2d 214 (limiting the scope of

cross-examination); Padilla, 110 Wis. 2d at 424 (limiting the

right to cross-examination to only those witnesses called to the

stand).      As noted above, preliminary examinations are limited in

scope to determining whether there is probable cause to believe

that    a    defendant   committed     a   felony.      They    are   not     an

opportunity to determine the defendant's guilt or innocence.

       ¶49   Due to this narrow scope, we conclude that the use of

hearsay evidence at preliminary examinations pursuant to Wis.

Stat. § 970.038 does not violate due process rights.              Defendants

retain the ability to challenge the plausibility of hearsay and

other evidence presented by the State through cross-examination,
the presentation of evidence, and argument to the court.                    Wis.

Stat. § 970.03(5).        We agree with the court of appeals that

these means are sufficient to address the plausibility of the

allegations.

       ¶50   In the cases at hand, both Butts and the O'Briens had

a sufficient opportunity to challenge the probable cause of the

charges against them.       In their preliminary hearings, they both

cross-examined the State's witnesses.            Although they did not do
so, both Butts and the O'Briens had the opportunity to introduce
                                      20
                                       No.       2012AP1769, 2012AP1770, & 2012AP1863



evidence relevant to the probable cause inquiry.                        Further, they

both made numerous arguments challenging the probable cause for

the charges.        Because preliminary examinations are limited to

determining     whether      there    is     a    plausible      basis    to    support

probable cause, we determine that the examinations they received

comported with due process.            Accordingly, we determine that the

petitioners have failed to show that Wis. Stat. § 970.038 is

unconstitutional beyond a reasonable doubt.

                                           IV

      ¶51      Finally, we decline petitioners' invitation to modify

Wis. Stat. § 970.038 by imposing specific rules limiting the

admissibility of hearsay at preliminary examinations.                            Having

determined      that      the     petitioners         have     failed      in     their

constitutional challenges, we conclude that the proper forum for

the requested changes lies with the legislature.

      ¶52   The    petitioners       contend       that   Wis.    Stat.    §    970.038

strips the defense of the ability to effectuate the purpose of a

preliminary examination, which is to safeguard the accused and
the   public    against      unwarranted         prosecutions.       Although      Wis.

Stat. § 970.038 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.         Several        procedural      and     evidentiary

safeguards remain unaffected by the passage of the legislation.

      ¶53   Testing the plausibility of the witness's                          statement

still   implicates          adversarial          testing.         Wisconsin       Stat.
§ 970.03(5)       remains       unchanged.          It    provides       that     at   a
                                           21
                                          No.   2012AP1769, 2012AP1770, & 2012AP1863



preliminary hearing "the defendant may cross-examine witnesses

against the defendant, and may call witnesses on the defendant's

own behalf . . . ."          Wis. Stat. § 970.03(5).           Like the court of

appeals,      "[w]e    reject      any    implication    in    the   prosecution's

arguments before the trial court that the enactment of 970.038

somehow limited the defense's ability to call or cross-examine

witnesses at the preliminary examination."                   O'Brien, 349 Wis. 2d

667, ¶21.      As discussed above, the right to present witnesses in

the    O'Briens'      case   was     limited    by   their    inability      to   show

relevancy, not by the provisions of Wis. Stat. § 970.038.                           See

¶¶37-39, infra.

       ¶54    The focus of the circuit court's determination remains

the same:      whether the State has made a plausible showing of the

probable cause necessary to support a bindover for trial.                         This

determination is made on a case-by-case basis.

       ¶55    Our caselaw regarding the level of a probable cause

determination      remains        unaltered.      "Probable     cause   is    not    an

unvarying standard because each decision at the various stages
of    the    proceedings     is    an    independent    determination     with      the

varying burdens of proof."                County of Jefferson v. Renz, 231

Wis. 2d 293, 308, 603 N.W.2d 541 (1999).                 The degree of probable

cause required for a bindover is greater than that required to

support a criminal complaint.               See T.R.B. v. State, 109 Wis. 2d

179, 188, 325 N.W.2d 329 (1982); Taylor v. State, 55 Wis. 2d

168, 173, 197 N.W.2d 805 (1972).

       ¶56    Newly enacted Wis. Stat. § 970.038 allows a court to
make its probable cause determination                   "in whole or in part"
                                           22
                                                 No.     2012AP1769, 2012AP1770, & 2012AP1863



based on hearsay.                  As the court of appeals observed, however,

"[i]t     remains       the        duty    of    the     trial    court      to    consider          the

apparent reliability of the State's evidence at the preliminary

examination        in        determining          whether        the    State       has       made     a

plausible showing of probable cause . . . ."                                 O'Brien, 349 Wis.

2d 667, ¶2.

      ¶57    Reliability             is    the    hallmark        of    admissible         hearsay.

Traditionally,              the     rule    against        hearsay        views     out-of-court

statements        as    inherently          unreliable.           Despite         this    mistrust,

numerous     exemptions             and    exceptions        have      developed         under       the

common      law    that           allow    for    the      admission         of    hearsay         into

evidence.         Subsequently             the    common     law       was   codified         as     the

Wisconsin Rules of Evidence, Wis. Stat. §§ 901.01-911.02.4

      ¶58    The Wisconsin Rules of Evidence contain 23 exceptions

from hearsay for a variety of out-of-court statements that are

considered        reliable          due    to     the     circumstances           in     which       the

statements        were        made.         For        example,     the      circumstances           of

sufficient reliability exist when the speaker is describing an
event     while    seeing          it     (present       sense    impression,          Wis.      Stat.

§ 908.03(1)) or when describing a startling event while under

the     stress         of    the        event     (excited        utterance,           Wis.     Stat.

§ 908.03(2)).               Sufficient reliability exists                    when considering

the motivation of the speaker to tell the truth (statements made

for purposes of medical treatment Wis. Stat. § 908.03(4)).                                           The

regular records exception is grounded on the belief that the

      4
       The Wisconsin Rules of Evidence were adopted in 1973.                                         See
Sup. Ct. Order, 59 Wis. 2d R1 (1973).
                                                  23
                                           No.     2012AP1769, 2012AP1770, & 2012AP1863



records are sufficiently reliable because of the need of the

maker     to    keep        accurate      records      and    reports        (Wis.    Stat.

§ 908.03(6)).            Likewise, property records and family records are

exceptions from hearsay because they are considered sufficiently

reliable (Wis. Stat. § 908.03(13)-(15)).

       ¶59     The       criminal     complaint        may    rely      on    hearsay      to

demonstrate probable cause, but the hearsay must be sufficiently

reliable       to    make    a    plausible       showing     of   probable        cause   to

support a bindover for trial.                      Knudson, 51 Wis. 2d 270.                We

agree with the court of appeals that "the hearsay nature of

evidence may, in an appropriate case, undermine the plausibility

of the State's case."             O'Brien, 349 Wis. 2d 667, ¶2.

       ¶60     The court has discretion in determining what evidence

is sufficiently reliable.                 Although newly enacted Wis. Stat.

§ 970.038      allows       for     greater   use      of    hearsay    at       preliminary

examinations, it does not eliminate the court's obligation to

exercise its judgment.              It is the circuit court's role to act as

the evidentiary gatekeeper.                   Vivid, Inc. v. Fiedler, 219 Wis.
2d 764, 803, 580 N.W.2d 644 (1998).

                                              V

       ¶61     In sum, we determine that petitioners have failed to

meet the heavy burden of showing beyond a reasonable doubt that

Wis.    Stat.        §    970.038    is    unconstitutional.               The    scope    of

preliminary examinations is limited to determining whether there

is probable cause to believe that a defendant has committed a

felony.        Following         precedent,       we   conclude     that     there    is   no
constitutional            right      to    confrontation           at    a       preliminary
                                              24
                                       No.     2012AP1769, 2012AP1770, & 2012AP1863



examination.       Further, due to the limited scope of preliminary

examinations,      we     determine     that        the    admission     of   hearsay

evidence    does    not   violate      petitioners'        rights   to    compulsory

process, effective assistance of counsel, or due process.

    ¶62     Finally, we decline petitioners' invitation to impose

new rules limiting the admissibility of hearsay at preliminary

examinations.       Wisconsin Stat. § 970.038 does not set forth a

blanket    rule    that   all   hearsay       be    admitted.       Circuit    courts

remain the evidentiary gatekeepers.                  They must still consider,

on a case-by-case basis, the reliability of the State's hearsay

evidence in determining whether it is admissible and assessing

whether    the    State   has   made    a     plausible      showing     of   probable

cause.      Accordingly, we affirm the decision of the court of

appeals.

    By     the    Court.—The    decision       of    the    court   of    appeals   is

affirmed.




                                         25
                                      No.   2012AP1769, 2012AP1770 & 2012AP1863.ssa




      ¶63    SHIRLEY      S.    ABRAHAMSON,        C.J.     (dissenting).          The

majority opinion and the parties focus on the constitutionality

of   Wis.   Stat.     § 970.038,      which      was   enacted     in    2011.1   They

address whether § 970.038 violates the defendant's confrontation

rights under the United States and Wisconsin Constitutions.                        The

majority opinion and the parties recognize, however, that the

legislature        has    accorded     defendants         rights    in     preliminary

examinations under Wis. Stat. § 970.03(5).                         This statute was

enacted in its current form in 1969.2

      ¶64    I    conclude     that   the       admission   of     hearsay    evidence

under new Wis. Stat. § 970.038 should be interpreted in light of

the longstanding text of § 970.03(5), which affords defendants

statutory        rights   in   preliminary         examinations.           This   court

typically decides cases on non-constitutional grounds before it

addresses constitutional issues.3                 I conclude the two statutes

should be harmonized.
      1
          2011 Wis. Act 285.
      2
          Ch. 255, Laws of 1969.
      3
       See Adams Outdoor Advertising, Ltd. v. City of Madison,
2006 WI 104, ¶91, 294 Wis. 2d 441, 717 N.W.2d 803.

     Nevertheless, I note that the United States Supreme Court
has recognized that certain Sixth Amendment rights, such as the
right to counsel, apply to pretrial stages. I am not so quick
to   conclude,  as  does   the  majority   opinion,  that  "the
Confrontation   Clause   does    not   apply    to  preliminary
examinations." Majority op., ¶30.

     The United States Supreme Court has begun to take into
account that most criminal cases do not go to trial and that
constitutional rights traditionally restricted to trial may be
applicable to critical pretrial stages:
                                            1
                                No.    2012AP1769, 2012AP1770 & 2012AP1863.ssa


    ¶65     Recently adopted Wis. Stat.           § 970.038 declares that

hearsay is generally admissible in preliminary examinations and

that a circuit court may base its finding of probable cause in

whole or in part on admitted hearsay.            This new statute reads in

full as follows:

    (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).
    ¶66     Prior to the recent enactment of Wis. Stat. § 970.038,

hearsay evidence was admissible at the preliminary examination

only if it fit within one of the exceptions to the hearsay rule

enumerated in the Wisconsin Rules of Evidence.                See majority

op., ¶20.

    ¶67     Wisconsin   Stat.         § 970.03      governs        preliminary

examinations.    Subsection (5) accords defendants two different




    The reality is that plea bargains have become so
    central to the administration of the criminal justice
    system that defense counsel have responsibilities in
    the plea bargain process, responsibilities that must
    be met to render the adequate assistance of counsel
    that the Sixth Amendment requires in the criminal
    process at critical stages. Because ours is for the
    most part a system of pleas, not a system of trials,
    it is insufficient simply to point to the guarantee of
    a fair trial as a backstop that inoculates any errors
    in the pretrial process.

Missouri v. Frye, 132 S. Ct. 1399,                 1407   (2012)    (internal
quotation marks and citations omitted).

                                      2
                                 No.   2012AP1769, 2012AP1770 & 2012AP1863.ssa


rights:    to   cross-examine   witnesses     against    them     and   to   call

witnesses on their behalf.4

     ¶68     Wisconsin Stat. § 970.03(5) reads as follows:

     (5) All witnesses shall be sworn and their testimony
     reported by a phonographic reporter. The defendant may
     cross-examine witnesses against the defendant, and may
     call witnesses on the defendant's own behalf who then
     are subject to cross-examination.
     ¶69     When   the   legislature      recently     enacted     Wis.     Stat

§ 970.038, it left § 970.03(5) unchanged.5

     ¶70     In interpreting multiple statutes, a court interprets

them together and harmonizes them to avoid conflict if at all

possible.6      This court attempts to harmonize statutes in a way

that will give effect to the legislature's intent in enacting

both statutes.7




     4
       "[T]he defendant must have compulsory process to assure
the appearance of his witnesses and their relevant evidence."
State v. Schaefer, 2008 WI 25, ¶35, 308 Wis. 2d 279, 746
N.W.2d 457.   The defendant "is by statute given the right to
confront witnesses . . . ."  Mitchell v. State, 84 Wis. 2d 325,
354, 267 N.W.2d 349 (1978).
     5
       2011 Wisconsin Act 285. See also Drafting File for 2011
S.B. 399, Analysis by the Legislative Reference Bureau of 2011
S.B. 399, Legislative Reference Bureau, Madison, Wis. (noting
that   "hearsay   evidence  is   admissible   at  a   preliminary
examination" without any reference to Wis. Stat. § 970.03(5)).
     6
       State v. Ray, 166 Wis. 2d 855, 873, 481 N.W.2d 288 (Ct.
App. 1992) (citing State v. Duffy, 54 Wis. 2d 61, 64, 194
N.W.2d 624 (1972)).
     7
       City of Madison v. DWD, Equal Rights Div., 2003 WI 76,
¶11, 262 Wis. 2d 652, 664 N.W.2d 584; Byers v. LIRC, 208
Wis. 2d 388, 395, 561 N.W.2d 678 (1997); City of Milwaukee v.
Kilgore, 193 Wis. 2d 168, 184, 532 N.W.2d 690 (1995).

                                       3
                                 No.   2012AP1769, 2012AP1770 & 2012AP1863.ssa


     ¶71    Additional statutory tools         of interpretation aid in

interpreting the two statutes at issue in the present cases.

Statutes are interpreted to give effect to each word and to

avoid redundant and surplus language.8         Moreover, words are given

meaning to avoid absurd, unreasonable, or implausible results

and results that are clearly at odds with the legislature's

purpose.9   Statutes are interpreted in view of their purpose.10

     ¶72    The   purpose   of   preliminary    examinations    under    Wis.

Stat. § 970.03 is to "protect[] defendants and the public from


     8
       See, e.g., Klemm v. Am. Transmission Co., 2011 WI 37, ¶18,
333 Wis. 2d 580, 798 N.W.2d 223; Pawlowski v. Am. Family Mut.
Ins. Co., 2009 WI 105, ¶22 n.14, 322 Wis. 2d 21, 777 N.W.2d 67
(citing Donaldson v. State, 93 Wis. 2d 306, 315, 286 N.W.2d 817
(1980) ("A statute should be construed so that no word or clause
shall be rendered surplusage and every word if possible should
be given effect.")).
     9
       Alberte v. Anew Health Care Servs., Inc., 2000 WI 7, ¶10,
232 Wis. 2d 587, 605 N.W.2d 515; Seider v. O'Connell, 2000 WI
76, ¶32, 236 Wis. 2d 211, 612 N.W.2d 659; Teschendorf v. State
Farm Ins. Cos., 2006 WI 89, ¶¶15, 18, 32, 293 Wis. 2d 123, 717
N.W.2d 258.
     10
       State v. Hanson, 2012 WI 4, ¶16, 338 Wis. 2d 243, 255,
808 N.W.2d 390, 396 ("Context and [statutory] purpose are
important in discerning the plain meaning of a statute.        We
favor an interpretation that fulfills the statute's purpose.")
(internal quotation marks & citations omitted); Klemm, 333
Wis. 2d 580, ¶18 ("An interpretation that fulfills the purpose
of the statute is favored over one that undermines the
purpose."); Lagerstrom v. Myrtle Werth Hosp.-Mayo Health System,
2005 WI 124, ¶51, 285 Wis. 2d 1, 700 N.W.2d 201 (examining
"legislative goals" to interpret a statute); Alberte, 232
Wis. 2d 587, ¶10 (courts need not adopt a literal or usual
meaning of a word when acceptance of that meaning would thwart
the obvious purpose of the statute); United Wis. Ins. Co. v.
LIRC, 229 Wis. 2d 416, 425-26, 600 N.W.2d 186 (Ct. App. 1999)
("Fundamental to an analysis of any statutory interpretation is
the ascertainment and advancement of the legislative purpose.").

                                       4
                                      No.    2012AP1769, 2012AP1770 & 2012AP1863.ssa


unwarranted         prosecution,"    and         to    function       "as   a   check   on

prosecutorial discretion."           Majority op., ¶21.11

       ¶73    Thus, the new statute allowing hearsay evidence at the

preliminary examination, Wis. Stat. § 970.038, must be read to

meet    the   statutory     purpose     of       protecting       defendants     and    the

public      from    unwarranted     prosecutions          and     to    give    continued

vitality to Wis. Stat. § 970.03(5).                      Section 970.03(5), which

grants rights to defendants, is not to be treated as surplusage.

       ¶74    I agree with the majority opinion that the State is

not required under either statute to call witnesses just so a

defendant may cross-examine them.                 Majority op., ¶33.12

       ¶75    I also agree with the majority opinion that the recent

enactment of Wis. Stat. § 970.038 does not limit a defendant's

ability under § 973.03(5) to call witnesses at the preliminary

examination.         Majority op., ¶34.               A defendant's right to call

witnesses is subject to the limits placed upon the trial right

to call witnesses and is constrained by the limited purpose of

the preliminary examination.
       ¶76    The    preliminary     examination          has     a    narrow    focus.13

Probable cause that a felony was committed, probable cause that



       11
       A preliminary examination exists "to protect the accused
from hasty, improvident, or malicious prosecution and to
discover whether there is a substantial basis for bringing the
prosecution and further denying the accused his right to
liberty." State v. Kleser, 2010 WI 88, ¶55, 328 Wis. 2d 42, 786
N.W.2d 144 (internal quotation marks omitted).
       12
       See State v. Oliver, 161 Wis. 2d 140, 148-49 467
N.W.2d 211 (Ct. App. 1991); State v. Padilla, 110 Wis. 2d 414,
424, 329 N.W.2d 263 (Ct. App. 1982).

                                             5
                                      No.    2012AP1769, 2012AP1770 & 2012AP1863.ssa


the defendant committed the felony, and plausibility are the

sole issues at a preliminary examination.                        Defense counsel is

therefore     limited    to    present          evidence14      at    the   preliminary

examination      relevant     to    probable      cause    and       plausibility   (not

credibility).15

     ¶77    At    some   point,      plausibility         and    credibility    elide.

"[T]he line between plausibility and credibility may be fine;

the distinction is one of degree."16

     ¶78    In    O'Brien,         defense       counsel        asserted     that   the

defendants wanted to call the hearsay declarant, S.M.O., to test

the plausibility of the hearsay statements admitted through the

officer's testimony:

     [DEFENSE COUNSEL]:            . . . .

     For example, one of the allegations in this case is
     that, um, [the victim hearsay declarant] states that

     13
       Schaefer, 308 Wis. 2d 279, ¶34. "[I]ts purpose is merely
to determine whether there is sufficient evidence that charges
against a defendant should go forward."
     14
       "[T]he     defense  right   to   call    witnesses  is
subject . . . to a broad discretion of the magistrate to
restrict preliminary hearing presentations in accordance with
the limited purposes of that hearing."   4 Wayne R. LaFave et
al., Criminal Procedure § 14.4(d), at 359 (3d ed. 2007)
(emphasis added).
     15
       A defendant "may call witnesses to rebut the plausibility
of a witness's story and the probability that a felony was
committed.  In this regard, the defendant must have compulsory
process to assure the appearance of his witnesses and their
relevant evidence."   Schaefer, 308 Wis. 2d 279, ¶35 (citation
omitted).
     16
       State v. Dunn, 121 Wis. 2d 389, 397, 359 N.W.2d 151
(1984); see also County of Jefferson v. Renz, 231 Wis. 2d 293,
322, 603 N.W.2d 541 (1999) (citing Dunn).

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     he was hit by his father with a flashlight.    What if
     the rest of the part of that story was . . . his
     father sprouted wings and flew around the room like a
     bat and then hit him with a flashlight?      The whole
     story would sound absolutely incredible, unbelievable,
     and implausible.
     ¶79       The    majority       opinion        criticizes     defense      counsel's

proffer regarding the relevance of the witnesses the defendant

wishes to call.              The majority opinion declares that "[a]bsent

any idea what S.M.O. would testify to, counsel's proffer was

insufficient to show that S.M.O.'s testimony would be relevant

to the probable cause inquiry."17

     ¶80       Such     a    proffer,    however,          will   often    be    limited.

Defense       counsel       rarely   knows     at    the    preliminary      examination

exactly what a witness (who will testify for the State at trial)

will say before the witness takes the stand.                        When a defendant

has no way of knowing exactly what a witness knows or will

testify to at the preliminary examination, the law does not

place     a   significant       burden    on      the   defendant     to     demonstrate

relevance.18         Tools of discovery are limited in pretrial criminal

proceedings.19




     17
          Majority op., ¶38.
     18
       For example, when defendants seek in camera review to
determine whether disclosure of a confidential informant's
identity is appropriate, this court has stated that the burden
on the defendant is "not significant" and that "[t]he showing
need only be one of a possibility that the informer could supply
testimony necessary to a fair determination."      See State v.
Green, 2002 WI 68, ¶24 n.7, 253 Wis. 2d 356, 646 N.W.2d 298
(quoting State v. Outlaw, 108 Wis. 2d 112, 125, 321 N.W.2d 145
(1982)).

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    ¶81     Considering these difficulties, I would not hold the

bar for the proffer as high as the majority opinion does.                                    The

proffer    here       is       weak.         Nonetheless,      the     majority       opinion's

requiring       a    specific      proffer         of   exactly       how   a   witness      will

specifically          rebut        a     prosecution           claim        undermines        the

preliminary examination's purpose of putting the State to its

burden    and       undermines         the    statutory     rights         accorded    by    Wis.

Stat. § 970.03(5).

    ¶82     Under         the    majority          opinion's    holding,        and   with    the

limited     tools         of    criminal        discovery       available        in    pretrial

proceedings, how can a defendant ever challenge double or triple

hearsay in a police report read by an individual who has never

interviewed         the    hearsay       declarant?            Does    a    wrongly     accused

person,     under         the     majority         opinion's      reasoning,          have   any


     Similarly, if a defendant seeks to admit evidence in
connection with a defense theory, the threshold for admitting
such evidence is low, even if the theory itself is "thoroughly
discredited."    See State v. Head, 2002 WI 99, ¶115, 255
Wis. 2d 194, 648 N.W.2d 413 ("[I]f, before trial, the defendant
proffers 'some' evidence to support her defense theory and if
that evidence, viewed most favorably to her, would allow a jury
to conclude that her theory was not disproved beyond a
reasonable doubt, the factual basis for her defense theory has
been satisfied.").
    19
       See State v. Bowser, 2009 WI App 114, ¶21, 321
Wis. 2d 221, 772 N.W.2d 666 (noting that despite the broad right
to pretrial discovery granted by Wis. Stat. § 971.23(1), "the
right to pretrial discovery is tempered by the circuit court's
discretion under Wis. Stat. § 971.23(6) to deny, restrict,
defer, 'or make other appropriate orders' concerning discovery
upon a showing of good cause"); see also Schaefer, 308
Wis. 2d 279, ¶77 n.17 ("In Wisconsin, criminal 'discovery' is
not entirely the parties' procedure because the scope of
discoverable materials is set out in statute and compliance with
the statute will be enforced by the court.").

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opportunity short of a trial to challenge the plausibility of

the State's case?

      ¶83   I conclude that under the circumstances of O'Brien,

the offer of proof, although admittedly weak, sufficed to allow

the defendant to call the declarant.                    Of course, the State has

the right to object to and argue against the admissibility of

any   portion     of   the   testimony          of     witnesses   called      by     the

defendant if the testimony is not relevant to plausibility and

probable cause.

      ¶84   If preliminary examinations are to serve as effective

roadblocks to frivolous and fraudulent prosecutions, and if they

are truly to be a "critical stage" of trial, the preliminary

examination cannot be reduced to a farce, in which a defendant

has no ability to challenge or rebut the narrative advanced by

the State's proffered double and triple hearsay testimony.

      ¶85   Other      states'     approaches            to    this      issue        are

instructive.        Colorado     has   a       rule    identical   to    Wis.       Stat.

§ 970.03(5); it does not have a rule identical to § 970.038, but
Colorado allows the use of hearsay evidence at the preliminary

examination.

      ¶86   The   Colorado     Supreme         Court    determined      that    it   was

abuse of discretion for the trial court to prohibit a defendant

from calling a prosecution hearsay declarant as a witness, when

the witness was available and the probable cause determination




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                                             No.    2012AP1769, 2012AP1770 & 2012AP1863.ssa


rested entirely on the witness's identification and story.                                        See

McDonald v. District Court, 576 P.2d 169 (Colo. 1978).20

       ¶87     California has provisions similar to the two Wisconsin

statutes       at     issue    in    the      instant          cases.         Interpreting        the

California law, a California court declared that the trial court

did not err in allowing a defendant to call hearsay declarants

as defense witnesses.21

       ¶88     In     cases    such     as     the       instant         cases,    in    which    the

prosecution relies on double or triple hearsay for which the

defendants'          cross-examination              of        the       State's     witnesses      is

meaningless,          the    plausibility          of     the       State's       case   cannot    be

tested without allowing the defendant to call witnesses——either

the hearsay declarant or an individual with personal knowledge

of the hearsay statement.

       ¶89     In     the     instant      cases,         the       State's       witnesses      were

presenting single, double, and triple hearsay.                                    In O'Brien, the

sole        witness     of     the    prosecution,                  a    police     investigator,

testified       to    hearsay       statements           of    declarants         she    personally
interviewed but also testified to statements made by declarants

to a third party while the investigator was in the room, as well

as videotaped hearsay statements made by declarants to an third

party.

       20
       See also Rex v. Sullivan, 575 P.2d 408, 411 (Colo. 1978)
(holding that "the judge cannot completely curtail cross-
examination on testimony vital to the issue of probable
cause . . . by refusing to allow the defense counsel to probe
the strength of the eyewitness identifications on cross-
examination of the [witness]").
       21
            People v. Erwin, 20 Cal. App. 4th 1542, 1551 (1993).

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    ¶90     In the Butts case, the preliminary examination never

took place.      The complaint contained statements from multiple

hearsay declarants made either in writing or to different police

officers.     The State averred in Butts that it intended to call a

police   officer   to    read     the     hearsay    statements    given   to   the

officer by the hearsay declarants.                  In short, the plausibility

of the hearsay statements could not have been tested without the

defendant's     ability      to    call     the     declarant     or   others   as

witnesses.

    ¶91     By failing to value sufficiently the statutory right

of the defendant to compel witnesses in his or her defense, the

majority opinion renders Wis. Stat. § 970.03(5) surplusage and

undermines the statutory purpose of allowing a defendant to test

the plausibility of the prosecution's case.

    ¶92     The texts, the context, and the statutory purposes of

both statutes dictate the conclusion that the defendant has the

statutory     right     to   cross-examine           witnesses    to   test     the

plausibility of their testimony and the statutory right to call
witnesses,     including     hearsay        declarants,     to    challenge     the

plausibility of the State's evidence.

    ¶93     Accordingly, I dissent.




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