Effective date note
Judicial Council Note, 1990:: [Re amendment of (13)] The right to confront one's accusers does not apply to the preliminary examination, and since credibility is not an issue, demeanor evidence is of less significance than at trial. For these reasons, a party should not be permitted to prevent the admission of telephone testimony, although the proponent of such evidence should bear the burden of showing good cause for its admission. [Re Order eff. 1-1-91]
970.03 Annotation
While hearsay relied upon in support of a criminal complaint requires some basis for crediting its reliability, whether the informants are named or not, that requirement is satisfied if the hearsay is based upon observation of the informants. State ex rel. Cullen v. Ceci,
45 Wis. 2d 432,
173 N.W.2d 175 (1970).
970.03 Annotation
There is no obligation on a magistrate to conduct an investigation to verify the contents of a criminal complaint. That is the duty of the state, and if it fails to put sufficient facts before the magistrate to show probable cause, the complaint must fail even though clues and leads that could provide that information are revealed in the complaint. State ex rel. Cullen v. Ceci,
45 Wis. 2d 432,
173 N.W.2d 175 (1970).
970.03 Annotation
At the preliminary hearing, a defendant is entitled to cross-examine witnesses who identified him at the hearing and who also identified him at a lineup, because if the lineup was unfair, the identification evidence might be suppressed. Hayes v. State,
46 Wis. 2d 93,
175 N.W.2d 625 (1970).
970.03 Annotation
A ruling on admissibility of evidence at a preliminary hearing is not res adjudicata at the trial. Meunier v. State,
46 Wis. 2d 271,
174 N.W.2d 277 (1970).
970.03 Annotation
It was not error for the magistrate and trial court to fail to sequester witnesses without motion by the defendant, especially in the absence of a showing of prejudice. Abraham v. State,
47 Wis. 2d 44,
176 N.W.2d 349 (1970).
970.03 Annotation
A bind over was not invalid because the judge stated that it was "for the purpose of accepting a plea." Dolan v. State,
48 Wis. 2d 696,
180 N.W.2d 623 (1970).
970.03 Annotation
A defendant is not entitled to call witnesses for pretrial discovery or to shake the credibility of the state's witness. State v. Knudson,
51 Wis. 2d 270,
187 N.W.2d 321 (1971).
970.03 Annotation
A defendant who has been indicted by a grand jury is not entitled to a preliminary examination. State ex rel. Welch v. Waukesha County Circuit Court,
52 Wis. 2d 221,
189 N.W.2d 417 (1971).
970.03 Annotation
When the preliminary examination is not timely held, personal jurisdiction is lost, but when the defendant on arraignment enters a plea, the defense is waived. Armstrong v. State,
55 Wis. 2d 282,
198 N.W.2d 357 (1972).
970.03 Annotation
Defense counsel should be allowed to cross-examine a state's witness to determine the plausability of the witness, but not to attack the witness's general trustworthiness. Wilson v. State,
59 Wis. 2d 269,
208 N.W.2d 134 (1973).
970.03 Annotation
The purpose of a hearing under sub. (1) is to determine whether a felony, whether charged or not, probably was committed. After bind over the prosecutor may charge any crime not wholly unrelated to transactions and facts adduced at the preliminary examination. Wittke v. State ex rel. Smith,
80 Wis. 2d 332,
259 N.W.2d 515 (1973).
970.03 Annotation
Appellate review of a preliminary hearing is limited to determining whether the record contains competent evidence to support the examining magistrate's exercise of judgment. Although motive is not an element of any crime and does not of itself establish guilt or innocence, evidence of motive may be given as much weight as the fact finder deems it is entitled to at the preliminary hearing or trial. State v. Berby,
81 Wis. 2d 677,
260 N.W.2d 798 (1978).
970.03 Annotation
Section 970.03 (8) neither limits a prosecutor's discretion to prosecute criminal actions nor prohibits a second examination under s. 970.04. State v. Kenyon,
85 Wis. 2d 36,
270 N.W.2d 160 (1978).
970.03 Annotation
This section does not require that proof of the exact time of an offense be shown. State v. Sirisun,
90 Wis. 2d 58,
279 N.W.2d 484 (Ct. App. 1979).
970.03 Annotation
In finding probable cause, the court properly took judicial notice of the fact that rapid consumption of 1/2 quart of liquor probably caused a young girl's death. State ex rel. Cholka v. Johnson,
96 Wis. 2d 704,
292 N.W.2d 835 (1980).
970.03 Annotation
An accused does not have a constitutional right to make a closing argument at a preliminary examination. State ex rel. Funmaker v. Klamm,
106 Wis. 2d 624,
317 N.W.2d 458 (1982).
970.03 Annotation
The state has the right to appeal a dismissal when it believes an error of law was committed. An uncorroborated confession alone was sufficient to support a probable cause finding. State v. Fry,
129 Wis. 2d 301,
385 N.W.2d 196 (Ct. App. 1985).
970.03 Annotation
Mandatory closure of a hearing solely at the request of a complaining witness over the objection of the defendant violates the right to a public trial. Stevens v. Manitowoc Cir. Ct.,
141 Wis. 2d 239,
414 N.W.2d 832 (1987).
970.03 Annotation
If an appellate court stays the trial court proceedings on an interlocutory appeal, sub. (2) does not set a mandatory time limit for the preliminary hearing upon remittitur. State v. Horton,
151 Wis. 2d 250,
445 N.W.2d 46 (Ct. App. 1989).
970.03 Annotation
An unconstitutionally obtained confession may be admitted and serve as the sole basis for bindover at a preliminary examination. State v. Moats,
156 Wis. 2d 74, 457 Wis.2d 299 (1990).
970.03 Annotation
A defendant claiming error at a preliminary examination may obtain relief only prior to trial; the defendant may seek interlocutory review from the court of appeals under s. 809.50. State v. Webb,
160 Wis. 2d 622,
467 N.W.2d 108 (1991).
970.03 Annotation
Adjourning a preliminary examination for cause is within the court's discretion. State v. Selders,
163 Wis. 2d 607,
472 N.W.2d 526 (Ct. App. 1991).
970.03 Annotation
A court commissioner's determinations of admissibility of evidence will be upheld absent an erroneous exercise of discretion; the reviewing court then determines whether, if believed, the evidence would permit a reasonable magistrate to conclude that the defendant probably committed the crime. State v. Lindberg,
175 Wis. 2d 332, N.W.2d (Ct. App. 1993).
970.03 Annotation
If a bindover decision is made by a court commissioner or circuit judge, review must be by a motion to dismiss brought in circuit court. Habeas corpus is not available to review a bindover. Dowe v. Waukesha County Circuit Ct.
184 Wis. 2d 724,
516 N.W.2d 714 (1994).
970.03 Annotation
Single count complaints under sub. (7) and multiple count complaints under sub. (10) are to receive the same procedural treatment. In multiple count complaints a court must dismiss any count for which it believes there is not probable cause to believe a felony has been committed by the defendant. The specific felony charged need not be proved and it is inadvisable for the court to opine as to what felony was probably committed. Evidence that is not transactionally related to a count for which bind over is considered proper may not form the basis for a count in an ensuing information, but the information may include any count that is transactionally related to a count on which the defendant is bound over. State v. Williams,
198 Wis. 2d 516,
544 N.W.2d 406 (1996),
93-2444. See also State v. Williams,
198 Wis. 2d 479,
544 N.W.2d 400 (1996),
93-2517 and State v. Akins,
198 Wis. 2d 495,
544 N.W.2d 392 (1996),
94-1872.
970.03 Annotation
Following a bindover at a preliminary hearing, the proper test for reviewing a challenge to an information that alleges wholly new charges not accompanied by the original charge is the sufficiency of evidence test. State v. Cotton, 2003 WI App 154,
266 Wis. 2d 308,
668 N.W.2d 346,
02-2923.
970.032
970.032
Preliminary examination; juvenile under original adult court jurisdiction. 970.032(1)
(1) Notwithstanding
s. 970.03, if a preliminary examination is held regarding a juvenile who is subject to the original jurisdiction of the court of criminal jurisdiction under
s. 938.183 (1) or
(2), the court shall first determine whether there is probable cause to believe that the juvenile has committed the violation of which he or she is accused under the circumstances specified in
s. 938.183 (1) (a),
(am),
(ar),
(b) or
(c) or
(2), whichever is applicable. If the court does not make that finding, the court shall order that the juvenile be discharged but proceedings may be brought regarding the juvenile under
ch. 938.
970.032(2)
(2) If the court finds probable cause to believe that the juvenile has committed the violation of which he or she is accused under the circumstances specified in
s. 938.183 (1) (a),
(am),
(ar),
(b) or
(c), the court shall determine whether to retain jurisdiction or to transfer jurisdiction to the court assigned to exercise jurisdiction under
chs. 48 and
938.The court shall retain jurisdiction unless the juvenile proves by a preponderance of the evidence all of the following:
970.032(2)(a)
(a) That, if convicted, the juvenile could not receive adequate treatment in the criminal justice system.
970.032(2)(b)
(b) That transferring jurisdiction to the court assigned to exercise jurisdiction under
chs. 48 and
938 would not depreciate the seriousness of the offense.
970.032(2)(c)
(c) That retaining jurisdiction is not necessary to deter the juvenile or other juveniles from committing the violation of which the juvenile is accused under the circumstances specified in
s. 938.183 (1) (a),
(am),
(ar),
(b) or
(c), whichever is applicable.
970.032 Annotation
This section does not violate a defendant's right to equal protection. State v. Martin,
191 Wis. 2d 647,
530 N.W.2d 420 (Ct. App. 1995).
970.032 Annotation
The juvenile bears the burden of proof to demonstrate that the factors under sub. (2) support removing jurisdiction to the juvenile court. The removal decision is within the discretion of the trial court. State v. Verhagen,
198 Wis. 2d 177,
542 N.W.2d 189 (Ct. App. 1995),
94-2823.
970.032 Annotation
Sub. (2) (a) allows the trial court to balance the treatment available in the juvenile system and adult system and requires it to decide under the facts of the case which treatment will better benefit the juvenile. State v. Dominic E.W.
218 Wis. 2d 52,
579 N.W.2d 282 (Ct. App. 1998).
970.035
970.035
Preliminary examination; juvenile younger than 15 years old. Notwithstanding
s. 970.03, if a preliminary examination under
s. 970.03 is held regarding a juvenile who was waived under
s. 938.18 for a violation which is alleged to have occurred prior to his or her 15th birthday, the court may bind the juvenile over for trial only if there is probable cause to believe that a crime under
s. 940.03,
940.06,
940.225 (1) or
(2),
940.305,
940.31 or
943.10 (2),
943.32 (2) or
961.41 (1) has been committed or that a crime that would constitute a felony under
chs. 939 to
948 or
961 if committed by an adult has been committed at the request of or for the benefit of a criminal gang, as defined in
s. 939.22 (9). If the court does not make any of those findings, the court shall order that the juvenile be discharged but proceedings may be brought regarding the juvenile under
ch. 938.
970.04
970.04
Second examination. If a preliminary examination has been had and the defendant has been discharged, the district attorney may file another complaint if the district attorney has or discovers additional evidence.
970.04 History
History: 1993 a. 486.
970.04 Annotation
If the state has no additional new or unused evidence upon which to base a 2nd complaint, a preliminary examination order discharging a defendant is appealable. Wittke v. State ex rel. Smith,
80 Wis. 2d 332,
259 N.W.2d 515 (1977).
970.04 Annotation
When a first preliminary examination became chaotic, the prosecution properly abandoned the proceedings before presenting all its evidence and reissued the complaint. State v. Brown,
96 Wis. 2d 258,
291 N.W.2d 538 (1980).
970.04 Annotation
The state is not barred from recharging a defendant, whether or not it has new evidence. State v. Hoffman,
106 Wis. 2d 185,
316 N.W.2d 143 (Ct. App. 1982).
970.04 Annotation
A complaint was properly reissued although the evidence at the 2nd examination was identical to the evidence at the first examination, because the judge did not consider the evidence at the first examination. State v. Twaite,
110 Wis. 2d 214,
327 N.W.2d 700 (1983).
970.04 Annotation
A complaint may be reissued when "new or unused" evidence would support a finding of probable cause. What constitutes new or unused evidence is not easily definable, but it is not evidence that is not merely cumulative or collaborative and is determined by applying common sense. State v. Johnson,
231 Wis. 2d 58,
604 N.W.2d 902 (Ct. App. 1999).
970.05
970.05
Testimony at preliminary examination; payment for transcript of testimony. 970.05(1)
(1) The testimony at the preliminary examination shall be transcribed if requested by the district attorney, the defendant or an attorney representing the defendant or ordered by the judge to whom the trial is assigned. The reporter shall file such transcript with the clerk within 10 days after it is requested.
970.05(2)(a)(a) When a transcript is requested under
sub. (1) by someone other than a person specified in
par. (b) or
(c), the county shall pay the cost of the original and any additional copies shall be paid for at the statutory rate by the party requesting the copies.
970.05(2)(b)
(b) When a transcript is requested under
sub. (1) by the state public defender or by a private attorney appointed under
s. 977.08, the state public defender shall pay the cost of the original from the appropriation under
s. 20.550 (1) (f) and any additional copies shall be paid for at the statutory rate by the party requesting the copies.
970.05(2)(c)
(c) When a transcript is requested under
sub. (1) by a defendant who is not indigent under
ch. 977 or by an attorney retained by a defendant who is not indigent under
ch. 977, the defendant shall pay the cost of the original and any additional copies shall be paid for at the statutory rate by the party requesting the copies.
970.05 History
History: 1993 a. 437;
1995 a. 199.
970.05 Annotation
Counsel is not entitled to a free copy of the transcript if the original is reasonably available. State v. Schneidewind,
47 Wis. 2d 110,
176 N.W.2d 303 (1970).
