2011 - 2012 LEGISLATURE
January 25, 2012 - Introduced by Senators Grothman and Lazich, cosponsored by
Representatives Jacque, Bies, Craig, Krug and
LeMahieu. Referred to
Committee on Judiciary, Utilities, Commerce, and Government Operations.
1An Act to repeal
908.07 and 970.03 (11); and to create
970.038 of the statutes; 2relating to: the admissibility of hearsay evidence at a preliminary
Analysis by the Legislative Reference Bureau
Under current law, if an adult is charged with a felony (or, under certain
circumstances, if a juvenile is charged with a violation that would be a crime if
committed by an adult), a preliminary examination is conducted to determine
whether there is probable cause to believe that the person committed the crime as
charged. In the case of a juvenile, the preliminary examination is also used to
determine whether the juvenile should be tried in adult court or referred to juvenile
Under current law, hearsay evidence (a statement, other than one made by a
person who is testifying in court, that is offered to prove the truth of the matter
asserted) is generally inadmissible in court proceedings, including in a preliminary
examination. Current law offers some exceptions to the rule that hearsay is
inadmissible, which generally require some indication that the hearsay is reliable
or trustworthy. Current law also includes an exception at a preliminary examination
to establish property ownership, a victim's lack of consent to entry upon or
destruction of private property, and certain elements of identity theft crimes.
Under this bill, hearsay evidence is admissible at a preliminary examination.
Under the bill, the court may rely on hearsay, in whole or in part, to determine
whether there is probable cause that the defendant committed a crime.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB399, s. 1
908.07 of the statutes is repealed.
SB399, s. 2
970.03 (11) of the statutes is repealed.
SB399, s. 3
970.038 of the statutes is created to read:
4970.038 Preliminary examination; hearsay exception. (1) 5
Notwithstanding s. 908.02, hearsay is admissible in a preliminary examination 6
under ss. 970.03, 970.032, and 970.035.
A court may base its finding of probable cause under s. 970.03 (7) or (8), 8
970.032 (2), or 970.035 in whole or in part on hearsay admitted under sub. (1).