On Point

In decision recommended for publication, COA approves use of “readers” at preliminary hearings

State v. Latres Christopher Robinson, 2025AP983-CR, 3/12/26, District IV (recommended for publication); case activity

In a decision resolving an issue which has been percolating since SCOW’s decision in O’Brien over a decade ago, COA approves the practice of calling an investigator to read the criminal complaint into the record in order to satisfy the preliminary hearing requirement.

Robinson faces numerous felony charges as a result of two alleged criminal incidents. (¶6). At the preliminary hearing, the State’s only witness was an investigator employed by the DA’s office. (¶7). His testimony consisted of reading the probable cause section of the complaint “verbatim.” (Id.). He also identified Robinson as the person discussed therein. (Id.). Counsel’s brief cross-examination revealed that the investigator had not spoken to any of the officers, victims or other witnesses named in that document. (¶8). Defense counsel therefore objected to bindover, asserting that the multiple levels of hearsay rendered the evidence insufficient. (¶10). Although the commissioner was sympathetic to defense counsel’s arguments, it found that bindover was appropriate given that hearsay is admissible at preliminary hearings and the State’s burden is low. (¶11). Counsel then renewed his challenge in front of the circuit court, arguing that the procedure used violated his ability to meaningfully subject the State’s case to adversarial testing. (¶12). Although the circuit court agreed that the complaint failed to “provide sufficiently reliable evidence supporting the required plausible account showing probable cause” and that the hearing was defective because it involved a witness merely “parroting” that account, it nonetheless denied the motion under a harmless error analysis. (¶¶13-14). Following the grant of his petition for leave to appeal, Robinson presents two issues.

Failure to Present Sufficiently Reliable Evidence to Support Plausible Accounts

Robinson first argues that the probable cause section of the criminal complaint, the only evidence supporting bindover, was insufficiently reliable. (¶21).He argues that this issue is reviewed under a deferential erroneous exercise of discretion standard. (Id.). For support, he points to language in SCOW’s decision in O’Brien (rejecting challenges to the legislature’s amendment of the preliminary hearing statute to explicitly permit hearsay testimony) which characterized circuit court judges as “evidentiary gatekeepers” who, following the legislative amendment as to hearsay, must “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.” (¶25).

However, two pre-O’Brien decisions from SCOW clearly indicate the standard of review for assessing a bindover decision is de novo. (¶22). At least one of those cases, Dunn, was cited in O’Brien, which “did not purport to alter the long-established de novo standard of review, nor more generally did O’Brien alter the ‘mere plausibility’ standard articulated in Dunn.'” (¶26). COA then applies that standard to the averments in this criminal complaint, which it recaps in exhaustive detail. (¶¶34-40). In Robinson’s favor, it does exclude one paragraph from its analysis that it agrees is “unclear” in some aspects. (¶32). However, it otherwise disagrees with trial counsel’s broad assertions that the complaint contains many contradictory and nonsensical assertions. (¶31).

As to the first alleged incident discussed in the complaint, “Robinson gives [COA] no reason to suspect inaccuracy or exaggeration” in the compiled witness statements. (¶43). And while COA acknowledges that it is possible that these witnesses “fabricated some or all of their statements or got material information wrong” the time for testing those accounts and exposing those inadequacies is the trial. (¶43). At this stage, COA has no basis to conclude “that any of the law enforcement personnel fabricated or misunderstood the uncomplicated allegations regarding Robinson’s alleged conduct as related in the complaint in a way that could undermine probable cause.” (Id.). While COA is careful not to endorse “a general rule that hearsay statements which are quoted by, or that quote, law enforcement agents are necessarily reliable[,]” it holds that under these circumstances the complaint presents a facially reliable account. (¶44).

COA likewise finds that the account of the second incident also passes muster and holds that “the assessment of reliability of hearsay in this context does not turn on a mechanical tallying of levels of hearsay.” (¶48). “[…][T]he mere presence of multiple levels of hearsay does not inherently render the prosecution’s allegations of a felony insufficiently reliable[…].” (¶50). However, COA also makes an important clarification. While hearsay evidence is fully admissible and hearsay exceptions do not need to be invoked, the underlying logic of those exceptions can often be useful in assessing the reliability of challenged hearsay. (¶48).”Consistent with the circuit court’s general concerns in this case, it may be that in other cases the State will rely too heavily on hearsay statements that, unlike the evidence here, lack a sufficient combination of clarity, probative value, detail, and use of multiple sources.” (¶51).

Mere Reading of Complaint

Robinson also attacks the procedure utilized here, which he claims prohibited him from conducting meaningful cross-examination. (¶52). COA agrees with the State that Wisconsin law does not recognize any right to “meaningful” cross-examination, as framed by Robinson, at this stage of the proceedings. (Id.). 

COA begins by accepting the “implied premise” that the investigator “had no relevant information to provide at the examination about the allegations against Robinson, aside from what he read from the criminal complaint and his testimony that he knew what Robinson looks like.” (¶55). It assumes, therefore, that what Robinson is arguing for is “that, at a minimum under these circumstances, he should have been allowed to cross-examine at least one person called by the State who was a victim, officer, or other witness who was knowledgeable about allegations in the complaint.” (¶57). However, COA concludes that the statutory mechanism at issue does not require the State to present Robinson with such a witness. After all, Robinson had no constitutional right to confrontation at this hearing. (¶59). And while, the case law does recognize a defendant’s “right” to cross-examination, this is a radically curtailed concept of cross-examination under which “defendants are entitled to cross examine only those witnesses actually called by the State, and the legislature has not broadened that to add witnesses whom the defendant would like the State to call.” (¶60). Even though the reliance on hearsay evidence may make the hearing more difficult from the defense perspective, the hearing is not a “sham” because defendants still have the limited ability to cross examine prosecution witnesses and to call their own witnesses relevant to plausibility. (¶61).

Robinson raises an array of practical objections and points out that defendants at this stage have no discovery and cannot possibly have conducted a defense investigation. (¶62). In his view, this process favors the prosecutor who drafts a criminal complaint which omits material helpful to the defense and could even allow a case to proceed when it is premised on “plain impossibility.” (Id.). COA is unconcerned. The State retains the burden at this hearing, which will obviously not be satisfied in the extreme cases involving “plain impossibilities” discussed by Robinson. (¶63). Moreover, this statutory mechanism is deliberately intended to not be a “mini-trial,” so any challenges faced by the defendant are “foreseeable, natural consequences of the process created by the legislature through pertinent statutes to create a pretrial check on improvident felony charges.” (¶64). It is also irrelevant, to COA, that this procedure essentially duplicates the process by which a criminal complaint may be challenged. (¶67). Even if the process will sometimes look duplicative, this is “merely extra protection against having to defend further against improvident felony charges for those defendants in those particular scenarios.” (¶67). The prosecution, meanwhile, is incentivized to draft thorough complaints. (¶68).

Finally, COA disagrees that its decision has rendered the preliminary hearing procedure “useless.” (¶69). The defendant can still attack the prosecution’s reliance on the criminal complaint in appropriate cases by claiming “the complaint contains significantly attenuated or unclear hearsay statements or statements that are otherwise illogical or materially inconsistent.” (¶70). And, while the right to call witnesses is also circumscribed at such a hearing, COA identifies at least some scenarios where the calling of witnesses will uncover a deficient prosecution account of “plausibility.” (¶72). Preliminary hearings, in COA’s view, are still meaningful in helping to “assess whether an account presented by the State, if the account is believed, supports probable cause.” (¶73). Specifically:

Courts continue to be barred from weighing the credibility of witnesses or to choose between conflicting versions of the facts just because one version is more persuasive. But O’Brien teaches that courts are also tasked with evaluating the reliability of particular pieces of evidence, in addition to applying the non-hearsay evidentiary rules, such as relevance. Accordingly, in addition to having the potential to provide the court with “essential facts” that might fill what amounts to a hollow or weak spot in the State’s evidence, a defense witness could also help the defendant persuade a court that material evidence offered by the State is not reliable and therefore the State has not shown the required plausible account.

(Id.).

COA does not reach the harmless error argument and therefore affirms.