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 his general trustworthiness. Wilson v. State, 59 W (2d) 269, 208 NW (2d) 134.
970.03 Annotation
Purpose of hearing under (1) is to determine whether any felony, whether charged or not, probably was committed. After bind over, prosecutor may charge any crime not wholly unrelated to transactions and facts adduced at preliminary examination. Wittke v. State ex rel. Smith, 80 W (2d) 332, 259 NW (2d) 515.
970.03 Annotation
Appellate review of preliminary hearing is limited to determination whether record contains competent evidence to support the examining magistrate's exercise of judgment. Although motive is not element of any crime and does not of itself establish guilt or innocence, evidence of motive may be given as much weight as fact finder deems it entitled to at preliminary hearing or trial. State v. Berby, 81 W (2d) 677, 260 NW (2d) 798.
970.03 Annotation
Section 970.03 (8) neither limits prosecutor's discretion to prosecute under 59.47 nor prohibits second examination under 970.04. State v. Kenyon, 85 W (2d) 36, 270 NW (2d) 160 (1978).
970.03 Annotation
This section does not require that proof of exact time of offense be shown. State v. Sirisun, 90 W (2d) 58, 279 NW (2d) 484 (Ct. App. 1979).
970.03 Annotation
See note to 902.01, citing State ex rel. Cholka v. Johnson, 96 W (2d) 704, 292 NW (2d) 835 (1980).
970.03 Annotation
See note to 971.01, citing State v. Hooper, 101 W (2d) 517, 305 NW (2d) 110 (1981).
970.03 Annotation
Accused does not have constitutional right to closing argument at preliminary examination. State ex rel. Funmaker v. Klamm, 106 W (2d) 624, 317 NW (2d) 458 (1982).
970.03 Annotation
If any reasonable inference supports conclusion that defendant probably committed a crime, magistrate must bind over defendant. State v. Dunn, 117 W (2d) 487, 345 NW (2d) 69 (Ct. App. 1984); aff'd. 121 W (2d) 389, 359 NW (2d) 151 (1984).
970.03 Annotation
State has right to appeal dismissal when it believes error of law was committed. Uncorroborated confession alone was sufficient to support probable cause finding. State v. Fry, 129 W (2d) 301, 385 NW (2d) 196 (Ct. App. 1985).
970.03 Annotation
Mandatory closure of hearing solely at request of complaining witness over objection of defendant violates right to public trial. Stevens v. Manitowoc Cir. Ct., 141 W (2d) 239, 414 NW (2d) 832 (1987).
970.03 Annotation
If appellate court stays trial court proceedings on interlocutory appeal, (2) does not set a mandatory time limit for the preliminary hearing upon remittitur. State v. Horton, 151 W (2d) 250, 445 NW (2d) 46 (Ct. App. 1989).
970.03 Annotation
Unconstitutionally obtained confession may be admitted and serve as sole basis for bindover at preliminary examination. State v. Moats, 156 W (2d) 74, 457 W (2d) 299 (1990).
970.03 Annotation
Defendant claiming error at preliminary examination may obtain relief only prior to trial; defendant may seek interlocutory review from court of appeals under 809.50. State v. Webb, 160 W (2d) 622, 467 NW (2d) 108 (1991).
970.03 Annotation
Adjourning a preliminary examination for cause is within court's discretion. State v. Selders, 163 W (2d) 607, 472 NW (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 the defendant probably committed the crime. State v. Lindberg, 175 W (2d) 332, NW (2d) (Ct. App. 1993).
970.03 Annotation
Where 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 W (2d) 724, 516 NW (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 which is transactionally related to a count on which the defendant is bound over. State v. Williams, 198 W (2d) 516, 544 NW (2d) 406 (1996). See also State v. Williams, 198 W (2d) 479, 544 NW (2d) 400 (1996) and State v. Akins, 198 W (2d) 495, 544 NW (2d) 392 (1996).
970.032
970.032
Preliminary examination; child under original adult court jurisdiction. 970.032(1)
(1) Notwithstanding
s. 970.03, if a preliminary examination is held regarding a child who is subject to the original jurisdiction of the court of criminal jurisdiction under
s. 938.183 (1), the court shall first determine whether there is probable cause to believe that the child has committed the violation of which he or she is accused under the circumstances specified in
s. 938.183 (1) (a),
(am),
(b) or
(c), whichever is applicable. If the court does not make that finding, the court shall order that the child be discharged but proceedings may be brought regarding the child under
ch. 938.
970.032(2)
(2) If the court finds probable cause as specified in
sub. (1), 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 child proves by a preponderance of the evidence all of the following:
970.032(2)(a)
(a) That, if convicted, the child 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 child or other children from committing the violation of which the child is accused under the circumstances specified in
s. 938.183 (1) (a),
(am),
(b) or
(c), whichever is applicable.
970.032 History
History: 1993 a. 98;
1995 a. 77,
352.
970.032 Annotation
This section does not violate a defendant's right to equal protection. State v. Martin, 191 W (2d) 647, 530 NW (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 W (2d) 177, 542 NW (2d) 189 (Ct. App. 1995).
970.035
970.035
Preliminary examination; child younger than 16 years old. Notwithstanding
s. 970.03, if a preliminary examination under
s. 970.03 is held regarding a child 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 child 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 child be discharged but proceedings may be brought regarding the child 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
Where the state has no additional new or unused evidence upon which to base a second complaint, preliminary examination order discharging defendant is appealable. Wittke v. State ex rel. Smith, 80 W (2d) 332, 259 NW (2d) 515.
970.04 Annotation
Where first preliminary examination became chaotic, prosecution properly abandoned the proceedings before presenting all evidence and reissued the complaint. State v. Brown, 96 W (2d) 258, 291 NW (2d) 538 (1980).
970.04 Annotation
State was not barred from recharging defendant, whether or not it had new evidence. State v. Hoffman, 106 W (2d) 185, 316 NW (2d) 143 (Ct. App. 1982).
970.04 Annotation
Complaint was properly reissued although evidence at second examination was identical to evidence at first examination, because judge did not consider evidence at first examination. State v. Twaite, 110 W (2d) 214, 327 NW (2d) 700 (1983).
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 for his use. State v. Schneidewind, 47 W (2d) 110, 176 NW (2d) 303.
