CRIMINAL PROCEDURE—PRELIMINARY PROCEEDINGS
Initial appearance before a judge.
Duty of a judge at the initial appearance.
Preliminary examination; juvenile under original adult court jurisdiction.
Preliminary examination; juvenile younger than 15 years old.
Testimony at preliminary examination; payment for transcript of testimony.
Ch. 970 Cross-reference
See definitions in s. 967.02
Initial appearance before a judge. 970.01(1)
Any person who is arrested shall be taken within a reasonable time before a judge in the county in which the offense was alleged to have been committed. The initial appearance may be conducted on the record by telephone or live audiovisual means under s. 967.08
. If the initial appearance is conducted by telephone or live audiovisual means, the person may waive physical appearance. Waiver of physical appearance shall be placed on the record of the initial appearance and does not waive other grounds for challenging the court's personal jurisdiction. If the person does not waive physical appearance, conducting the initial appearance by telephone or live audiovisual means under s. 967.08
does not waive any grounds that the person has for challenging the court's personal jurisdiction.
When a person is arrested without a warrant and brought before a judge, a complaint shall be filed forthwith.
Sup. Ct. Order, 141 W (2d) xiii (1987); 1987 a. 403
; 1995 a. 27
Judicial Council Note, 1988: Sub. (1) is amended to authorize the arrested person to waive physical appearance and request that the initial appearance be conducted on the record by telephone or live audio-visual means. [Re Order effective Jan. 1, 1988]
It is not unreasonable to detain a person arrested on Saturday after the courthouse is closed until his arraignment Monday morning. Kain v. State, 48 W (2d) 212, 179 NW (2d) 777.
Where defendant confessed to 8 robberies within one half hour after arrest in the early morning and was not taken before a judge until the next day, the period of detention was not unreasonable. Quinn v. State, 50 W (2d) 101, 183 NW (2d) 64.
The fact that a defendant confesses between the time of arrest and appearance before a magistrate does not prove that the delay was unreasonable. Pinczkowski v. State, 51 W (2d) 249, 186 NW (2d) 203.
Where defendant was taken to jail in the evening on suspicion of murder, and questioning resumed at 8:30 the next morning and continued at intervals until 9:50 that evening, after defendant was given the warning and said he did not want an attorney, a delay until the following morning in taking him to court was not unreasonable, since the police needed time to check out various information supplied by defendant and others. State v. Hunt, 53 W (2d) 734, 193 NW (2d) 858.
A delay in taking defendant before a magistrate from Saturday noon to Monday afternoon was justified when caused by attempts to locate witnesses and giving a lie detector test requested by defendant. State v. Wallace, 59 W (2d) 66, 207 NW (2d) 855.
See note to 971.04, citing State v. Neave, 117 W (2d) 359, 344 NW (2d) 181 (1984).
The interval between an arrest and an initial appearance is never unreasonable where the arrested suspect is already in the lawful physical custody of the state. State v. Harris, 174 W (2d) 367, 497 NW (2d) 742 (Ct. App. 1993).
Rule that a judicial determination of probable cause must be made within 48 hours of a warrantless arrest applies to Wisconsin; failure to comply did not require suppression of evidence not obtained because of the delay where probable cause for arrest was present. State v. Koch, 175 W (2d) 684, 499 NW (2d) 153 (1993).
Failure to conduct a probable cause hearing within 48 hours of arrest is not a jurisdictional defect and not grounds for dismissal with prejudice or voiding of a subsequent conviction unless the delay prejudiced the defendant's right to present a defense. State v. Golden, 185 W (2d) 763, 519 NW (2d) 659 (Ct. App. 1994).
A person taken into custody on a probation hold while an investigation is made to determine if a probation violation has occurred is not under arrest and not subject to the requirement of a probable cause hearing within 48 hours of a warrantless arrest. State v. Martinez, 198 W (2d) 222, 542 NW (2d) 215 (Ct. App. 1995).
Determination of probable cause made within 48 hours of warrantless arrest generally meets promptness requirement; if hearing is held more than 48 hours following arrest the burden shifts to the government to demonstrate emergency or extraordinary circumstances. County of Riverside v. McLaughlin, 500 US 44, 114 LEd 2d 49 (1991).
Duty of a judge at the initial appearance. 970.02(1)
At the initial appearance the judge shall inform the defendant:
Of the charge against the defendant and shall furnish the defendant with a copy of the complaint which shall contain the possible penalties for the offenses set forth therein. In the case of a felony, the judge shall also inform the defendant of the penalties for the felony with which the defendant is charged.
Of his or her right to counsel and, in any case required by the U.S. or Wisconsin constitution, that an attorney will be appointed to represent him or her if he or she is financially unable to employ counsel.
That the defendant is entitled to a preliminary examination if charged with a felony in any complaint, including a complaint issued under s. 968.26
, or when the defendant has been returned to this state for prosecution through extradition proceedings under ch. 976
, or any indictment, unless waived in writing or in open court, or unless the defendant is a corporation or limited liability company.
The judge shall admit the defendant to bail in accordance with ch. 969
Upon request of a defendant charged with a misdemeanor, the judge shall immediately set a date for the trial.
A defendant charged with a felony may waive preliminary examination, and upon the waiver, the judge shall bind the defendant over for trial.
If the defendant does not waive preliminary examination, the judge shall forthwith set the action for a preliminary examination under s. 970.03
In all cases in which the defendant is entitled to legal representation under the constitution or laws of the United States or this state, the judge or magistrate shall inform the defendant of his or her right to counsel and, if the defendant claims or appears to be indigent, shall refer the person to the authority for indigency determinations specified under s. 977.07 (1)
If the offense charged is one specified under s. 165.83 (2) (a)
, the judge shall determine if the defendant's fingerprints, photographs and other identifying data have been taken and, if not, the judge shall direct that this information be obtained.
There is no need to appoint both a guardian ad litem and defense counsel unless it appears that prejudice would result from dual representation. Gibson v. State, 47 W (2d) 810, 177 NW (2d) 912.
Preliminary examination. 970.03(1)
A preliminary examination is a hearing before a court for the purpose of determining if there is probable cause to believe a felony has been committed by the defendant. A preliminary examination may be held in conjunction with a bail revocation hearing under s. 969.08 (5) (b)
, but separate findings shall be made by the judge relating to the preliminary examination and to the bail revocation.
The preliminary examination shall be commenced within 20 days after the initial appearance of the defendant if the defendant has been released from custody or within 10 days if the defendant is in custody and bail has been fixed in excess of $500. On stipulation of the parties or on motion and for cause, the court may extend such time.
A plea shall not be accepted in any case in which a preliminary examination is required until the defendant has been bound over following preliminary examination or waiver thereof.
If the defendant is accused of a crime under s. 940.225
, the court may exclude from the hearing all persons who are not officers of the court, members of the complainant's or defendant's families or others considered by the court to be supportive of the complainant or defendant, the service representative, as defined in s. 895.73 (1) (c)
, or other persons required to attend, if the court finds that the state or the defendant has established a compelling interest that would likely be prejudiced if the persons were not excluded. The court may consider as a compelling interest, among others, the need to protect a complainant from undue embarrassment and emotional trauma.
In making its order under this subsection, the court shall set forth specific findings sufficient to support the closure order. In making these findings, the court shall consider, and give substantial weight to, the desires, if any, of the complainant. Additional factors that the court may consider in making these findings include, but are not limited to, the complainant's age, psychological maturity and understanding; the nature of the crime; and the desires of the complainant's family.
The court shall make its closure order under this subsection no broader than is necessary to protect the compelling interest under par. (a)
and shall consider any reasonable alternatives to full closure of the entire hearing.
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.
During the preliminary examination, the court may exclude witnesses until they are called to testify, may direct that persons who are expected to be called as witnesses be kept separate until called and may prevent them from communicating with one another until they have been examined.
If the court finds probable cause to believe that a felony has been committed by the defendant, it shall bind the defendant over for trial.
If the court finds that it is probable that only a misdemeanor has been committed by the defendant, it shall amend the complaint to conform to the evidence. The action shall then proceed as though it had originated as a misdemeanor action.
If the court does not find probable cause to believe that a crime has been committed by the defendant, it shall order the defendant discharged forthwith.
In multiple count complaints, the court shall order dismissed any count for which it finds there is no probable cause. The facts arising out of any count ordered dismissed shall not be the basis for a count in any information filed pursuant to ch. 971
. Section 970.04
shall apply to any dismissed count.
The court may admit a statement which is hearsay and which is not excluded from the hearsay rule under ss. 908.02
to prove ownership of property or lack of consent to entry to or possession or destruction of property.